Judgment S.K. Keshote, J.-This appeal Under Section 374 of the Code of Criminal Procedure, 1973 is directed by Mst Amina w/o of Mohd. Ismile, ,at present in District Jail, Sikar, against the Judgment of conviction and order of sentence dated 19th of September, 1995 of the Additional Sessions Judge, Sikar, in Sessions Case No. (12/1995) 09/1995. The Additional Sessions Judge, Sikar under his Judgment of conviction and order of sentence, convicting the accused appellant for the offence punishable Under Section 302 of the Indian Penal Code and sentenced her to life imprisonment with a fine of Rs. 1,000/-in default of payment thereof she has to undergo further six months’ rigorous imprisonment. 2. Theprosecution case is that the deceased Mst. Zarina gave a ‘Parcha Bayan Ex. P. 5 on 19th September, 1994 to Shri Mahendra Singh, Dy. S.P. Sikar (P.W. 9) at Shri Kalyan Hospital, Sikar in FSW Bed No. 21 at 9.40 a.m. On the basis of this ‘Parcha Bayan’ Ex. PS of Mst. Zarina First Information Report Ex. P. 13 chalked out and Case No. 43 8/94 was registered at Police Station, Kotwali, Sikar against the accused appellant Under Sections 307 and 498-A, IPC. 3. Asper the case of prosecution, Mst. Zarina was married in her early age. From last 7-8 years she was coming to the house of her in-laws. She was having a daughter aged 4-5 years, whose name is Anisa. Her husband was out of India from last one year. She was living in her parents’ house for last two years as her husband Abdul Rahim and her mother-in-law Mst. Amina (accused appellant) used to give her beating. Before five days of this incident her father in-law Mohd. Ismile brought her to in-laws’ house. Her father in-law was not giving any beating toiler. 4. On the day of incident in the morning she was sleeping in the room on first floor on Gadda’. Her mother-in-law Mst. Amina accused appellant poured kerosene oil on her and put fire by lifting a match stick. Mst. Zarina cried and her father-in-law came running there. She in the state of burning came down from the room. The father-in-law has taken her to the hospital. Her daughter Anisa was at her parents house. The mother in-law Mst. Her mother-in-law Mst. Amina accused appellant poured kerosene oil on her and put fire by lifting a match stick. Mst. Zarina cried and her father-in-law came running there. She in the state of burning came down from the room. The father-in-law has taken her to the hospital. Her daughter Anisa was at her parents house. The mother in-law Mst. Amina-accused appellant used to beat her for the reason that she belonged to a poor family and had not brought money and she put fire to her after pouring kerosene oil. 5. This‘Parcha Bayan’ Ex. PS of deceased Mst. Zarina, was recorded on that day at 9.40 a.m. The police had drawn the proceedings on this ‘Parcha Bayan, it is noticed therein that the condition of deceased Mt. Zarina is serious, her dying declaration is to be got recorded by the concerned Judicial Magistrate. 6. On 19th September, 1994, Shri Mahaveer Prasad Sharma, RJS Additional Civil Judge (Junior Division) and Magistrate, I Class No. 1, Sikar at S.K. Hospital at 11.05 a.m. recorded the dying declaration of deceased Mst. Zarina, who was admitted in FSW Bed No. 21. 7. During investigation of the case, the Investigating Officer Shri Mahendra Singh (P.W. 9) has prepared Ex. P. 1 site plan, Ex. P. 2 seizure memo of one cloth of Tilak of deceased Mst. Zarina, Ex. P. 3 seizure memo of one Salwar one Jamfar and one Loongadi of Mst. Zarina. The accused appellant was arrested on the same day. Ex. P. 4her arrest and personal search memo have been prepared. Dr. G.R. Tan war, (P.W. 7) Medical Jurist of Shri Kalyan Hospital, Sikar has prepared Ex. P6 injury report of deceased Mst. Zarina. Deceased Mst. Zarina for the treatment was taken from S.K. Hospital, Sikar to S.M.S. Hospital, Jaipur where she died on 19th of November, 1994. Post-mortem on her body has been conducted by Dr. P,N. Mathur, (P.W. 12) and he prepared post-mortem report Ex. P. 10. Inquest report (Ex. P. 9) has been prepared. In the case the offence punishable Under Section 302, IPC has been added after her death. 8. After completing the investigation, the challan has been filed against the accused appellant for the commission of offence punishable Under Sections 302 and 201, IPC in the Court of Judicial Magistrate, 1st Class, Sikar. Inquest report (Ex. P. 9) has been prepared. In the case the offence punishable Under Section 302, IPC has been added after her death. 8. After completing the investigation, the challan has been filed against the accused appellant for the commission of offence punishable Under Sections 302 and 201, IPC in the Court of Judicial Magistrate, 1st Class, Sikar. The Judicia Magistrate, 1st Class, Sikar has committed the case to the Court of Sessions on 16th of January, 1995. 9. TheAdditional Sessions Judge, Sikar on 9.2.1995 has though declined to frame the charge against the accused appellant for the offence punishable Under Section 201, IPC, but charge has been framed against her for the commission of offence punishable Under Section 302, IPC. .10. The prosecution to prove its case examined following witnesses : P.W. 1 Smt. Salma, the mother of the deceased. .P.W. 2 Chand Mohd., brother of deceased. .P.W. 3 Badruddin, Motbir of site plan, Ex. P.1 seizure memo of one cloth of Tilak of deceased, Ex. P. 2 seizure memo of one Salwar, one Jamfar and one Loongadi of the deceased, Ex. P. 3 arrest and personal search memo of accused Ex. P. 4. .P.W. 4Mohd. Yusuf , neighbour and Motbir of documents Exs. P. 1, P. 2 and P. 3. .P.W. 5 Salim, nephew of mother of deceased. .P.W. 6Dr. Radha Choudhary, Medical Officer, S.K. Hospital, Sikar and the witness of documents Ex. P. .P.W. 7Dr. G.R. Tanwar, Medical Jurist, S.K. Hospital, Sikar and the witness of documents Ex. P. 6, injury report of the deceased, Ex. P. 7 Ex. P. 8 letter of Dy. S.P. asking opinion about the deceased condition, the medical opinion given by him in response to documents Ex. P. 7. .P.W. 8Kanhaiya Lai, Additional Superintendent of Police, Sikar the witness of documents Ex. P4, arrest and personal search memo of accused appellant. .P.W. 9Mahendra Singh, Dy. S.P., the Investigating Officer. .P.W. 10 Mahaveer Prasad Sharma, Judicial Magistrate, 1st Class, Sikar who recorded the dying declaration of the deceased Ex. P. 14 and the witness of the documents Ex. P. 12 and Ex. P. 15 .P.W. 11Mali Ram, HC No. 2040, Police Station, Moti Doongri, Jaipur witness of documents Ex.P9 inquest report and Ex. P11 receipt of delivering the dead body of the deceased to her brother. .P.W. 12Dr. P. 14 and the witness of the documents Ex. P. 12 and Ex. P. 15 .P.W. 11Mali Ram, HC No. 2040, Police Station, Moti Doongri, Jaipur witness of documents Ex.P9 inquest report and Ex. P11 receipt of delivering the dead body of the deceased to her brother. .P.W. 12Dr. R.N. Mathur, Medical Jurist, S.M.S. Hospital, Jaipur who conducted the post-mortem of the deceased (Ex. P. 10). The prosecution produced following documentary evidence: Ex. P. 1 Site plan with its description Ex. P. 2 Seizure memo of one cloth of Tilak of deceased Smt. Jarina Ex. P. 3 Seizure memo of one Salwar, one Jamifar and one Loogadi of Smt. Jarina Ex. P. 4 Arrest and personal search memo of accused Smt. Amina Ex. P. 5 Parcha Bayan of Smt. Jarina Ex. P. 6 Copy of Injury report of Smt. Jarina Ex. P. 7 Terir CO. Ex. P. 8 Fitness certificate ot Doctor Ex. P. 9 Inquest report of deceased Jarina Ex. P. 10 Post-mortem Report Ex. P. 11 Delivery of the dead body of Jarina Ex. P. 12 Request to Civil Judge to record the statement (dying declaration) of Smt. Jarina from the S.H.O., PS. Simar Ex. P. 13 First Information Report Ex. P. 14 Dying declaration of Smt. Jarina Ex. P. 15 Forwarding letter sending of dying declaration to C.J.M., Sikar by A.C.J. (Jr. Div.) and J.M. No. 1, Sikar. The statement of the accused appellant Under Section 313, Cr. P.C. were recorded on 16.1995. In the defence, the accused appellant has produced three witnesses viz., .(1) AbdulWahab D.W. 1 .(2) Mst. Batul D.W. 2 .(3) Mohd. Ismile D.W. 3. Following documentary evidence was produced in defence: .(1) Statements of Shri Salim recorded Under Section 161, CrPC Ex. P. 1 .(2) Ex. D. 2 to Ex. D. 6 photographs .(3) Ex. D. 7 to Ex. D. 126 cash memos of the purchase of medicines. 11. Learned Counsel for the accused appellant challenging the Judgment of the learned Additional Sessions Judge, Sikar contended that whole of the prosecution case is concocted one. The prosecution has failed to prove its case beyond reasonable doubt against the accused appellant. In the facts of this case and the evidence came on the record the dying declarations Ex. P. 5 (Parcha Bayan) and Ex. P. 14 could not have been relied upon. 12. The prosecution has failed to prove its case beyond reasonable doubt against the accused appellant. In the facts of this case and the evidence came on the record the dying declarations Ex. P. 5 (Parcha Bayan) and Ex. P. 14 could not have been relied upon. 12. It is submitted that these dying declarations are surrounded by the suspicious circumstances and unless the corroborative evidence is there, the same could not have been made basis for convicting and sentencing the accused appellant for the commission of offence punishable Under Section 302, IPC 13. Referring to the documents Ex. P. 5 and Ex. P. 14, the learned Counsel for the accused appellant pointed out the contradictions and submitted that it demolishes the case of the prosecution. The learned Counsel for the accused appellant urged that these dying declarations Ex. P. 5 and Ex. P. 14 are totally false. Referring to the statements of witnesses P.W. 1, P.W. 2, P.W. 3, P.W. 4 and P.W. 5 it is submitted that their conduct is wholly unnatural and they are not the trustworthy witnesses. The possibility of false implication of the accused appellant in the case cannot be overruled. As per the prosecution case the relations in between the deceased and the accused appellant were strained. 14. It has next been contended that Mst. Zarina, died about seven weeks, after the incident in the S.M.S. Hospital, Jaipur. The members of the accused family tried their level best to save her. The conviction of the accused appellant thus Under Section 302, IPC is bad in law. Lastly, it is contended that the death of the deceased was due to septicaema i.e. septic and it has resulted because of negligence of doctors for which the appellant could not have been punished. Carrying this contention further it is submitted that taking everything worst against the accused appellant, it is not the case which goes beyond Section 304 Part-II, IPC. .15. In support of the contentions, the learned Counsel for the accused appellant placed reliance on the following decisions: .(1) Rasheed Beg & Ors. vs. State of Madhya Pradesh, AIR 1974 S.C. 332 . .(2) Munnu Raja & Anr. vs. The State of Madhya Pradesh, AIR 1976 S.C. 2199 . .(3) Khera & Ors. vs. The State of Rajasthan, Cr.L.R. 1990 (Raj.) 623. .(4) Rajangamv. State (TamilNadu), Cr. L.J. 1993 S.C. 3680. .(5) Ratan Lal & Ors. vs. State of Madhya Pradesh, AIR 1974 S.C. 332 . .(2) Munnu Raja & Anr. vs. The State of Madhya Pradesh, AIR 1976 S.C. 2199 . .(3) Khera & Ors. vs. The State of Rajasthan, Cr.L.R. 1990 (Raj.) 623. .(4) Rajangamv. State (TamilNadu), Cr. L.J. 1993 S.C. 3680. .(5) Ratan Lal & Ors. vs. State of Rajasthan, 2002 (1) Cr. L.R. (Raj.) 354. 16. Mr. S.S. Rathore, learned Public Prosecutor for the State in contra contended that it is a case where mother-in-law has killed her daughter-in-law by burning her. The father-in-law or any other relative has not been involved which fact goes to show and overruled any possibility of false implication of accused appellant in the case. Referring to the documents Ex. P. 5 and Ex. P. 14, it is submitted that no doubt whatsoever on the statements of deceased can be raised. It is not necessary that the certificate of fitness of the deceased before recording her statements of the Medical Officer is required on the documents itself Certificate regarding fitness of the deceased to give statements has been taken from doctor and reference has been made to Ex. P. 7 and Ex. P. 8. 17. Mr. Rathore, submitted that the accused has cleaned the site, the place of incident and thus many things could not have been recovered, He made reference to the documents Ex. P. 1 site plan and more particularly, the note appended to it. Lastly, in his submission, it is a clear case of killing of the daughter-in-law by the, mother-in-law. The case has been proved beyond reasonable doubt by the prosecution and the contentions raised by the learned Counsel for the accused appellant that at the most the case falls Under Section 304 Part -II, IPC is wholly baseless. 18. We have considered the rival contentions raised by the learned Counsel for the parties and carefully gone through the record of the case and Judgment and order of the learned Trial Court. 19. Thelearned Trial Court held accused appellant guilty of the commission of offence punishable Under Section 302, IPC on the basis of dying declarations of deceased Ex. P. 5 and Ex, P. 14. 20. Ex. P. 6 the injury report of Mst. Zarina dated 19th of September, 1994 prepared by Dr. G.R. Tanwar, (P.W. 7) Medical Jurist, Kalyan Hospital, Sikar reads: “There is superficial and deep burn at face, neck. P. 5 and Ex, P. 14. 20. Ex. P. 6 the injury report of Mst. Zarina dated 19th of September, 1994 prepared by Dr. G.R. Tanwar, (P.W. 7) Medical Jurist, Kalyan Hospital, Sikar reads: “There is superficial and deep burn at face, neck. Both upper limbs, chest and breast anteriorly, abdomen anteriorly, both thigh anteriorly, blisters present at few places, skin blackish surrounding area radish. Total burn area is 65% Smell of kerosene present by dry heat. 21. in the post-mortem report, the description of burns which were there on the body of the deceased has been given by Dr. P.N. Mathur (P.W. 12), Medical Jurists, S.M.S. Hospital, Jaipur, who conducted the same are as under; I to IV degree burns on face, neck anteriorly and laterally. Chest anteriorly and laterally, abdomen anteriorly and laterally except few patches left across midline lower 1 /3rd anteriorly, Lt. upper limb, Rt. upper limb (Rt. hand, fit, forearm anteriorly, Rt. shoulder and upper 1/3rd arm antero medially, both thighs upper 3/4th anteriorly and medically involving about 45% of total body surface area. Burns on face and both hand are almost healed and at rest of places are partially healed unhealthy granulation tissue and greenish yellow pus. 22. The remarks of the Medical Officer regarding the cause of death in the report are as under: The cause of death is septicaemia shock as a result of burns, ante-mortem and self -sufficient to cause death in ordinary course of nature. 23. Parcha Bayan and dying declaration are two separate and distinct documentary evidence in criminal case. But, there is no law that Parcha Bayan cannot be taken as a dying declaration of the deceased. In case an injured died after his Parcha Bayan is taken, it can be taken to be a dying declaration and, accordingly it can be taken so in a given case. This dying declaration made by the deceased stand to the tests of its reliability as laid down by Hon’ble the Supreme Court in catena of decisions. The statements of Smt. Jarina (Ex. P. 5) were recorded by Mahendra Singh, Dy. S.P., Sikar (Camp S.K. Hospital, Sikar). At that time it was not taken as if her dying declaration is being recorded. The statements of Smt. Jarina (Ex. P. 5) were recorded by Mahendra Singh, Dy. S.P., Sikar (Camp S.K. Hospital, Sikar). At that time it was not taken as if her dying declaration is being recorded. From the police proceedings drawn in the Parcha Bayan we find that the condition of deceased Jai’ina was serious and her dying declaration was to be recorded by the Judicial Magistrate. On the very date the police officer got arranged for recording of the dying declaration of the deceased and the same was recorded by the Judicial Magistrate. 24. The learned Counsel for the appellant has led much emphasis on the fact that Dr. Radha Choudhary is a created witness to this Parcha Bayan (Ex. P. 5). Having closely and carefully scrutinizing the statements of Dr. Radha Choudhary this contention of the learned Counsel for the accused appellant is difficult to accept. Dr. Radha Choudhary was on duty on that date in the hospital, may be in outdoor. She came to the ward. We do not find any exaggeration in her statements. We also do not find anything objectionable in the act of the Dy. S.P. of taking the statements of deceased in the presence of Dr. Radha Choudhary and taking signature of Dr. Radha Choudhary on the Parcha Bayan (Ex. P. 5). The learned Counsel for the appellant has failed to show and point out any personal interest of this lady doctor or enmity or other adversity against accused appellant. We find her statements most natural. Her (lady doctor) presence in the ward cannot be doubted. Where she stood by patience during the course of recording of her statements by Dy. S.P., it is not objectionable and that too to the extent where her statements are to be discarded and to disbelieve this dying declaration. It is hardly of any substance and relevance that she was not on duty in the ward. She went to the ward is not that much serious where her statements are not to be relied upon. Having gone through the statements of Dr. Radha Choudhary (P.W. 6) and Mahindra Singh, Dy. S.P. (P.W. 9) we are satisfied that the deceased was fit to give the statements recorded in her Parcha Bayan (Ex. P. 5). 25. She went to the ward is not that much serious where her statements are not to be relied upon. Having gone through the statements of Dr. Radha Choudhary (P.W. 6) and Mahindra Singh, Dy. S.P. (P.W. 9) we are satisfied that the deceased was fit to give the statements recorded in her Parcha Bayan (Ex. P. 5). 25. Thelearned Counsel for the appellant contended that this Parcha Bayan was recorded in the presence of relations of the deceased and there is all possibility of tutoring or prompting to the deceased. 26. Dr. Radha Choudhary (P.W. 6) in her cross-examination, stated that she does not know of other attendants of the deceased. However, some attendants were standing nearby the cot of the deceased. 27. From the statements of Mohd. Ismile (D. W. 3) and it is also the contention of the learned Counsel for the appellant, it comes out that the deceased was taken to the hospital by him. It is the contention of the learned Counsel for the appellant that the parents of the deceased did not take care of her. It was her father-in-law and other members of her in-laws, who looked after her and remained in the hospital for all the period during which she remained in hospital. 28. Having considered all aspects of the matter and looking to this contention of the learned Counsel for the appellant in the light of the statements made by Smt. Salma (P.W. 1) we are satisfied that if anybody was standing nearby the bed of the deceased, he or they may be from her in-laws’ side. Where contention of the learned Counsel for the appellant is examined with reference to the statements of Smt. Salma (P.W. 1), it is not tenable. She admitted that they reached the hospital at about 10-11 a.m. Police had reached the hospital before they reached. Parcha Bayan of deceased was recorded at 9.46 a.m. As per Dr. Radha Choudhary (P.W. 6), the statements of deceased might have been completed within 15-20 minutes, on a conjoint reading of the statements of Smt. Salma (P.W. 1), and Dr. Radha Choudhary (P.W. 6) with the Parcha Bayan of deceased (Ex. P. 5) it is difficult to accept that the same has been recorded in the presence of any of relations of the deceased. 29. Thecontention raised that the police has got the signature of Dr. Radha Choudhary (P.W. 6) with the Parcha Bayan of deceased (Ex. P. 5) it is difficult to accept that the same has been recorded in the presence of any of relations of the deceased. 29. Thecontention raised that the police has got the signature of Dr. Radha Choudhary (P.W. 6) on the Parcha Bayan afterwards, is wholly untenable. This suggestion was not put to Dr. Radha Choudhary during her cross-examination. Otherwise also we fail to see what for the police would have got this document signed afterwards by Dr. Radha Choudhary (P.W. 6). 30. The learned Counsel for the appellant has failed to show any decision that certificate of medical doctor regarding fitness of the deceased to give the statements, is to be recorded on the document itself Parcha Bayan was recorded by the police officer. This way if the matter is looked into, it is difficult to accept that it was got signed by Dr. Radha Choudhary (P.W. 6) afterwards. Dr. Radha Choudhary (P.W. 6) was in the ward where the deceased was admitted and she was present during the course of recording of the statements of the deceased. 3.31. Ex, P. 14 is the dying declaration of the deceased recorded by the Magistrate. The learned Counsel for the accused appellant contended that thereon the certificate of doctor with regard to the fitness of the deceased to give her statements, is not there. It is urged that mere say of the Magistrate that the doctor was there to certify re fitness of the deceased to give her statements, is not enough. The dying declaration recorded without certification by doctor regarding the fitness of the deceased to give her statements, is of no value and reliance could not have been placed thereon to punish the accused appellant. 4.32. Mahaveer Prasad Sharma, Judicial Magistrate, (P.W. 10) who recorded the dying declaration of the deceased, stated that before recording her statements he had taken the certificate of the Medical Officer Dr. G.R. Tanwar regarding the fitness of the deceased to give her statements. He has given his opinion vide Ex. P. 8, which reads “She is fit to give statement”. This document Ex. P-8 is a certificate given at 11.00 a.m. by the doctor and in the document Ex. P. 14 (dying declaration) the time is given 11.05 a.m. 1.33. Dr. G.R. Tanwar regarding the fitness of the deceased to give her statements. He has given his opinion vide Ex. P. 8, which reads “She is fit to give statement”. This document Ex. P-8 is a certificate given at 11.00 a.m. by the doctor and in the document Ex. P. 14 (dying declaration) the time is given 11.05 a.m. 1.33. Dr. G.R. Tanwar (P.W. 7) stated that before recording dying declaration the Magistrate has taken his opinion regarding the fitness of the deceased to give her statements. On this, he gave his opinion vide Ex. P. 8 certifying her therein to be fit to give the statements. 2.34. Fromthe document Ex. P. 8, statements of Dr. G.R. Tanwar (P.W. 7) and Mr. Mahaveer Prasad Sharma .(P.W. 10), Judicial Magistrate, we are satisfied that before recording the statements of the deceased the Judicial Magistrate had taken all care and precautions to take the medical opinion regarding fitness of the deceased to give statements. This certificate of fitness to give statements has been given immediately before the Judicial Magistrate started to record the statements of the deceased. In document Ex. P. 14 name of doctor, who has given certificate Ex. P. 9 is mentioned. The judicial officer only after taking the medical opinion certifying therein deceased to be fit to give statements, he recorded the statements of deceased (Ex. .P. 14). Before recording the dying declaration Judicial Magistrate, is to take medical expert’s opinion regarding the fitness of the person concerned to give statements. It is not the law nor any authority has been cited by the learned Counsel for the accused that it should have been recorded on the sheet of statements (dying declaration). The substance of the matter, and not the form, is important. Medical expert’s opinion is necessary for the satisfaction of concerned Judicial Magistrate who is to record the dying declaration of the deceased. .35. There is a fallacy in this argument of the learned Counsel for the appellant that this certificate of fitness of deceased to give statement should have been on the document itself Before the Magistrate starts to record the dying declaration of the deceased, the certificate of the medical expert regarding fitness of the deceased to give statements should have been obtained and then only he could have proceeded with his job. This certificate regarding fitness of the person concerned to give statements whose dying declaration is to be recorded by Judicial Magistrate, may be on the dying declaration itself or it may be in the form of separate certificate as what it is the case here. What is required by law is to be followed in the case is to obtain a medical certificate of doctor regarding fitness of the person concerned, whose statements arc to be recorded, to give statements (dying declaration) to the Magistrate. This requirement is fulfilled in spirit and substance in this case, document Ex. P. 8, the certificate given by Dr. G.R. Tanwar (P.W. 7) certifying thereunder Smt. Jareena is fit to give statements. Having gone through the statements of Dr. G.R. Tanwar (P.W. 7) and Shri Mahaveer Prasad, Judicial Magistrate, (P.W. 10) we are satisfied that the lady was in a fit condition to give .statements (Ex. P. 14). The certificate-cum-opinion of the medical expert regarding fitness to give the-statements i.e. for recording her dying declaration by the Magistrate, on the statements itself or in the form of separate certificate, as to what has been done in this case, is not material. Material requirement is that the certificate is to be obtained before the statements are recorded of the deceased. How to take and in what form the opinion of medical expert regarding fitness of the person whose statements are to be recorded by the Magistrate, is a procedural matter and the Magistrate concerned is the best person to decide his own course or modality for taking thereof In a given case only on the ground that this certificate is not there on the dying declaration itself , though evidence is available on the record that before recording thereof the medical expert’s opinion has been taken regarding the fitness of the person concerned to give statements, it cannot be discarded or brushed aside. The dying declaration has to be recorded by the Magistrate taking all care that any person, possibly to tutor or prompt the deceased, may not be present nearby him. The dying declaration has to be recorded by the Magistrate taking all care that any person, possibly to tutor or prompt the deceased, may not be present nearby him. Considering the matter from this aspect and angle, otherwise also to avoid the presence of any other person nearby to the deceased, the Magistrate may not be unreasonable, unjustified or erroneous in his approach and action to take a separate certificate/medical opinion regarding the fitness of the person concerned to give the statements whose dying declaration is to be recorded. 2.36. Mahaveer Prasad Sharma (P.W. 10) has made a categorical statement that after taking the opinion of doctor regarding the fitness of the deceased to give statements, he recorded her statements (Ex. P. 14). .37. Reference here fruitfully may have to the decision of the Apex Court in Koli Chunilal Savji & Anr. vs. State .of Gujarat, VIII (1999) SLT 253 (SC)=JT 1999 (7) SC 568, wherein it has been held: “The requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. Though there has been no endorsement on the dying declaration record]ed by the Magistrate with regard to the condition of the patient but there has been an endorsement of Police Yadi, indicating that Dhanuben was fully conscious. In view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police Yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. The two dying declarations made by the deceased at two different points of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt.” 3.38. In this view of the matter, the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt.” 3.38. We find from the statement of this witness (P.W. 10) that none of her relations was sitting nearby her bed. On being a question was put, the witness has made it clear that near to the deceased’s bed her relations were not sitting. Her statements, as to what it comes out from Ex. P. 14 (dying declaration), were recorded while she was lying on bed No. 21 in female surgical ward of S. K. Hospital, Sikar. It being a general ward, there may be persons, attendants or visitors of other patients, but the important thing and note of which has been taken by this witness is that nearby to the bed of the deceased, nobody should have been present. In his statements though at one place it has come - he does not know whether any family member of deceased was present. But, from this statement of the PW- 10 nothing turns in favour of the accused nor it can be taken to be of any substance or relevance or force to the extent to disbelieve and discard his statements. It is the defence of the accused appellant that throughout the period during which the deceased remained in hospital, member of her parent’s family not remained with her. Thus somebody was present there, possibility of presence of accused’ s own person cannot be ruled out. From the statements of Mahaveer Prasad Sharma (P.W. 10) it cannot be inferred in favour of the accused that parents or the other relation of the deceased were present in hospital near to the Magistrate when he was recording the statements of the deceased. 4.39. The discrepancy regarding time of incidence in the documents Ex. P. 5 and Ex. P. 14 is not very material. 5.40. The matter yet can be examined from another aspect. Fact that the deceased was burnt in fire, is not in dispute. The defence witness, father-in-law (D.W. 3) stated that clothes of the deceased were burning and he, to overcome this fire, put blanket on her. Mohd. Ismile (D.W. 3) gives the time of incidence 6. 6.30 a.m. In Ex. 5.40. The matter yet can be examined from another aspect. Fact that the deceased was burnt in fire, is not in dispute. The defence witness, father-in-law (D.W. 3) stated that clothes of the deceased were burning and he, to overcome this fire, put blanket on her. Mohd. Ismile (D.W. 3) gives the time of incidence 6. 6.30 a.m. In Ex. 6.P.5 it is stated to be morning time and in Ex. P. 14 the time is given 6-7 a.m. From documents Ex. P. 5, Ex. P. 14 and statements of Mohd. Ismile (D.W. 3) this discrepancy of time is not of any substance and material and, that too to the extent to disbelieve the case of the prosecution. 41. On the evidence which has come on record that the members of in-laws’ family had taken the deceased to the hospital and tried their level best to save her life and that they gave blood to her and spent lot of money on her treatment, it is contended that there was no reason to set fire on deceased by the accused mother-in-law. The deceased got the burn injuries at her in-laws’ house. The members of her in-laws’ family would have made all efforts to get sympathy of the community or police, etc. and in furtherance thereof willingly or unwillingly they would have taken all these precautions, care and steps. False implication ordinarily of a person is not made by a person who is lying on death bed. There are catena of decisions of the Apex Court wherein it is observed that at the time of death, a person ordinarily do not falsely implicate a person in a criminal case. In addition to her mother-in-law who is accused, there are many more other members, in the family and in case the deceased was really desirous of falsely implicating nobody would have stopped her to implicate others also. The deceased did not implicate her father-in-law and to the contrary stated that she has no complaint against him. Husband has also not been implicated. This conduct of the deceased supports the prosecution case that she has made fruthworthy statements in the documents Ex. P. 5 and Ex. P. 14. 1.42. Learned Counsel for the accused appellant urged that in Ex. Husband has also not been implicated. This conduct of the deceased supports the prosecution case that she has made fruthworthy statements in the documents Ex. P. 5 and Ex. P. 14. 1.42. Learned Counsel for the accused appellant urged that in Ex. P. 5 it is stated by the deceased that the accused appellant poured kerosene on her and lit fire by match stick in the room at first floor whereas in Ex. P. 14 she stated that kerosene oil was poured by the accused appellant in the room at first floor and after that she came down stairs and in Chowk the accused appellant lit the fire by match stick, this discrepancy in her these two statements make both wholly unreliable. 2.43. Before dealing with this contention raised by the learned Counsel for the appellant, we would like to refer and consider the decisions on which reliance has been placed by him in support of his case. 3.44. In the case of Rasheed Beg vs. State of Madhya Pradesh, (Supra) Their Lordships of Hon’ble the Supreme Court held: “As regards the latter dying declaration, the High Court has remarked that it is not noted in the case diary of the Investigating Officer. It saw the light of the day some time after September 26, 1969. The High Court observed that Arifbeg’s condition was not very g