B. C. PATEL, J. ( 1 ) IN view of the order made by the learned Chief Justice, this matter is placed before this Court as the learned Judges hearing the Criminal Appeal deferred in their opinion about culpability of the appellant-accused. ( 2 ) THE sole appellant-accused of Sessions Case No. 53 of 1993 was tried for offences punishable under Section 302 of the Indian Penal Code as also under Sections 323 and 504 of the Indian Penal Code and was held guilty by the learned Additional Sessions Judge, Navsari for the offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 250/- [in default of payment of fine to undergo rigorous imprisonment for a further period of two months]. However, the appellant was acquitted for the offences punishable under Sections 323 and 504 of the Indian Penal Code. It is against this order dated 31/12/1994, the present appeal is filed by the appellant-accused. ( 3 ) LALIBEN Gatubhai (P. W.-5) lodged a First Information Report on 21/04/1993 at 08. 30 a. m. wherein she disclosed as under:3. 1 that she resides with her father Babarbhai Zinabhai and works as a labourer. Her brother Shankerbhai Babarbhai, resides at village Bilimora. Her younger sister, Kanta, was married to Chiman Chhiba of the same village. 3. 2 she was married to one Ramanbhai and out of that wedlock, she delivered a child namely, Gita, the deceased. Since about last 8 years from the date of occurrence, she left the house of her husband. She had relation with one Gatu Soma, the accused, and they were living as husband and wife without performing any marriage ceremony. Out of this relation, she delivered a baby girl who died very shortly and thereafter, she delivered a son namely, Raju aged about four years (at the time of occurrence ). Gatu, the accused, was residing with Sita at village Samroli, and Laliben the informant, was residing with her father at village Malvada where Gatu used to come frequently. 3. 3 at village Malvada, she (Laliben) was occupying one house. The other old house was occupied by her father. Her mother died before about 25 years. Babarbhai is hard of hearing and his vision is also very poor. 3. 3 at village Malvada, she (Laliben) was occupying one house. The other old house was occupied by her father. Her mother died before about 25 years. Babarbhai is hard of hearing and his vision is also very poor. Gita, the deceased aged about 18 years, used to work as a labourer also. 3. 4 gatu, the accused, used to visit her frequently and in the beginning, he used to pay Rs. 300. 00 per month. But, since about a year or two, he was not paying regularly and, hence, Laliben, the informant, and Gita, the deceased, used to work as labourers and were pulling on their lives and were passing their days. 3. 5 on the day of incident, i. e. , 20/04/1993 at about 10. 00 p. m. , Gatu, the accused, came on bicycle, at that time, Gita was lying in her bed. Laliben asked for some money, therefore, the accused delivered kick blows and abused her. In the meanwhile, Gita woke up and started raising shouts to stop beating her mother. At that time, Laliben took her son, Raju, for answering call of nature just outside the house and was standing near the door. In the meanwhile, the accused took kerosene tin and poured kerosene on the person of Gita and ignited match stick and set her on fire. As a result of this, the deceased as well as Laliben raised an alarm for assistance. In the meanwhile, her husband, the accused, ran away on his bicycle. It happened at about 10. 30 p. m. Gita came out in burnt condition and threw herself in water flowing in a ditch. 3. 6 as a result of shouts, Prakashbhai, Chhaganbhai and Rakeshbhai Somabhai arrived at the spot and they took Gita in the house by lifting her person. Laliben removed her Punjabi Dress and put a petticoat on her person. Gita again went to the flowing water as she was having severe pain. 3. 7 in the meanwhile, Kanta, her sister, and Mukesh, son of Kanta, as also Babar Zina, father of Lali and Kanta, arrived at the spot. Kanta brought Gita in the house and Chiman called rickshaw and ultimately, Lali, Kanta and Babar Zina took Gita in the rickshaw. Prakash and Raju also travelled in the rickshaw to the Hospital sitting with the driver. They reached Chikhali Government Hospital. Kanta brought Gita in the house and Chiman called rickshaw and ultimately, Lali, Kanta and Babar Zina took Gita in the rickshaw. Prakash and Raju also travelled in the rickshaw to the Hospital sitting with the driver. They reached Chikhali Government Hospital. Laliben was engaged in looking after her. On these facts, the information was lodged before Senior Police-Sub-Inspector, Vikramsinh Rathod (P. W.-11), at about 08. 30 a. m. on 21/04/1993 and the Police commenced investigation. ( 4 ) DURING the investigation, statements of the persons acquainted with the facts were recorded; panchnamas were drawn; on 23/04/1993 statement of Gita was recorded by Vikramsinh Rathod - (P. W.-11 ). The Executive Magistrate recorded dying declaration vide Exhibit 38. On 29/04/1993, Gita succumbed to the injuries and as offence under Section 302 of the Indian Penal Code was required to be added, a Yadi was forwarded to the Court vide Exh. 49. After receiving the certificate from the Medical Officer, report of Forensic Science Laboratory, Postmortem Note, etc. , a charge-sheet was filed. The Judicial Magistrate committed the accused to the Court of Sessions. Charge vide Exh. 1 was framed by the learned Additional Sessions Judge on 21/04/1994, to which the accused pleaded not guilty and contended that he was entirely innocent. On appreciation of oral as well as documentary evidence, considering statement of the accused recorded under Section 313 of Criminal Procedure Code and submissions made by the learned Counsel appearing for the prosecution as well as the accused, the learned Additional Sessions Judge held the accused guilty of an offence punishable under Section 302 of the Indian Penal Code and sentenced as aforesaid. ( 5 ) ON behalf of the appellant, it was urged that the informant is the sole witness of the incident and her evidence is not reliable as she has failed to inform the persons gathered there soon after the occurrence about the person who committed crime. According to the defence, name of the accused came to the light for the first time when the first information was recorded and, therefore, her evidence is not reliable. It was also contended that as per her say on oath, she informed the Police at about 11. 00 a. m. and in between, there was sufficient time to concoct a story to involve the appellant. It was also contended that as per her say on oath, she informed the Police at about 11. 00 a. m. and in between, there was sufficient time to concoct a story to involve the appellant. It was furthersubmitted that about the manner in which Gita arrived at the scene is also doubtful. It was submitted that it is not clear whether she was cooking food or sleeping. The version of Laliben that Gita was preparing food is also doubtful as she has given other version in the evidence that she was sleeping. About dying declarations, it was contended that same should not be relied upon. The Executive Magistrate has not taken care to verify from the medical officer whether the patient was in a fit condition to state or not. It was further contended that in view of inconsistency in dying declarations, the same cannot be accepted. Before the Executive Magistrate in her dying declaration vide Exh. 38, she has not stated that she was sleeping and woke up on account of quarrel. While in other dying declaration, her version is that on account of shouts, she woke up and intervened to save her mother when her step-father was beating her mother. It was further contended that on perusal of panchnama with regard to the scene of offence, there is nothing to indicate that there was sign of scuffle in the room and, therefore, it would be just and proper to discard the version that the incident took place in the manner alleged. ( 6 ) IT was further contended that in view of variance in the evidence of Laliben with the dying declarations, prosecution version cannot be accepted. It was further contended that she has changed the earlier version. In cross-examination, she has come out with the version that Gita was also preparing food (Roti) while in chief-examination, her version was quite different, that is to say, she was in the house. It is in view of these contentions, the matter is required to be examined. ( 7 ) THIS is a case where crime is committed against a woman and that too, a violent crime. Laliben had relations with the accused Gatu since about 8 years. Gatu shared responsibility to certain extent for providing maintenance. It is on failure of Gatu to make regular payment, some exchange of words took place. ( 7 ) THIS is a case where crime is committed against a woman and that too, a violent crime. Laliben had relations with the accused Gatu since about 8 years. Gatu shared responsibility to certain extent for providing maintenance. It is on failure of Gatu to make regular payment, some exchange of words took place. It was not such a quarrel that Laliben would think that the same would result in violent attack on Gita. Laliben went out of the house. It seems that Gatu, the accused had no liking for the intervention of Gita. He lost his temper and took immediate action when Laliben went out of home. 7. 1 this case is an example which brings to the light about erosion of basic human values of tolerance. Gatu did not like the intervention of Gita. She was not the daughter born out of his extra-marital relations. he may not have love and affection towards Gita as his own daughter. ( 8 ) THE sole witness, Laliben (P. W.-5), has deposed about scene of occurrence. It is required to be noted that she got married with Ramanbhai and out of marital relation, she delivered a daughter, namely, Gita. It seems that on account of some disputes, she left the house of her husband and since then, she resides with her father, Babar Zina. It is also required to be noted from her evidence that no marriage ceremony took place between Laliben and the accused, but, they had relations of husband and wife. She delivered a child namely, Raju, out of the relation with the accused, Gatu. Gatu used to visit her atleast at an interval of 15 days or a month and used to pay Rs. 30. 00 or Rs. 50. 00. Thus Laliben had no enmity with the accused. Without marriage being performed, she had relation with Gatu as if he is her husband. There is no evidence to indicate that relation was strained in any manner. From the evidence, it transpires that Gatubhai came at 10. 00 p. m. while the incident in question took place at about 10. 30 p. m. 8. 1 she has categorically stated that at the time of occurrence in the house, she was in the company of Gita and Raju. She was preparing food. Gita was also in the house. From the evidence, it transpires that Gatubhai came at 10. 00 p. m. while the incident in question took place at about 10. 30 p. m. 8. 1 she has categorically stated that at the time of occurrence in the house, she was in the company of Gita and Raju. She was preparing food. Gita was also in the house. It is her version that he came and an amount was demanded as a result of which, Gatu beat her and started abusing her. It is in view of this, Gita intervened and stated that why he is beating her mother. It is at this juncture, that is to say, before anything seriously happened, she (Laliben) went outside with Raju just near the door. It is at that point of time, the accused poured kerosene on the person of Gita and set her ablaze. Gita came out of the house raising shouts for help and threw herself in flowing water near the house in a ditch and the accused in the meanwhile, ran away. She has stated in cross-examination that Gita was preparing food. She has denied the suggestion that Gita was sleeping and on account of exchange of words, Gita came and thereafter, she was set on fire by Gatu. She has specifically stated that when there was exchange of words, Gita was in the house. Gatu beat her with his hands. 8. 2 in cross-examination, she further stated that at Chikhali, she has stated to the doctor that the accused set her on fire. ( 9 ) IT may be noted that ordinarily, in the Hospital, there will be more than one doctor. It is not her case that she conveyed to the doctor who was treating her. At the time of admission, she might have conveyed to a doctor but the doctor who might be treating her may not necessarily be the same. Doctor, Anil Durlabh Patel (P. W.-7), who was discharging his duties, as a Superintendent of the Hospital, examined her. She was fully conscious. He did not question her about the cause and, therefore, she did not convey anything. Merely because the doctor to whom Laliben conveyed the cause is not examined, her evidence cannot be said to be doubtful. ( 10 ) ON the questions put by the cross-examiner, she stated that she went to the Police Station at about 11. He did not question her about the cause and, therefore, she did not convey anything. Merely because the doctor to whom Laliben conveyed the cause is not examined, her evidence cannot be said to be doubtful. ( 10 ) ON the questions put by the cross-examiner, she stated that she went to the Police Station at about 11. 00 a. m. for conveying the information. She has denied the suggestion that the Police Personnel were persuading her not to give complaint. She denied the suggestion that her father lodged the first information. On the aspect of time, it was submitted that when she herself stated on oath that she went to the Police Station at 11. 00 a. m. , there is no reason as to why her version should not be accepted. It was further submitted that the information was lodged after much delay, i. e. , after concocting the story involving the accused. It is not possible to accept the contention raised by the learned Counsel for defence as it is clear from the record that the information was lodged at 08. 30 a. m. and at 11. 00 a. m. , a copy of first information report in writing was forwarded to the Judicial Magistrate First Class in accordance with the provisions contained in Criminal Procedure Code. Endorsement clearly reveals that it was received at 11. 00 a. m. Merely because, a rustic witness committed a bona fide mistake in time, it cannot be said that the information was lodged at 11. 00 a. m. ( 11 ) IT is also not possible to accept the contention that to save her father, the accused has been falsely involved by the informant. The accused was the person, who was maintaining the informant. She had extra-marital relation with the accused. She delivered a child, Raju, out of that relation. There is nothing to indicate that there was any dispute between the two or any quarrel between the two. There is nothing to show that their association was objected by any of the family members and, therefore, she had hardly any reason to falsely involve the accused who was like her husband. It is required to be noted that exchange of words between the informant and Gatu or beating by hands was not of serious nature which would prompt Laliben to involve her paramour falsely in the offence of murder. It is required to be noted that exchange of words between the informant and Gatu or beating by hands was not of serious nature which would prompt Laliben to involve her paramour falsely in the offence of murder. The defence came out with the version that false information was lodged only with a view to save her father. ( 12 ) IT was further put in cross-examination that on the date of occurrence, Babar Zina, Gitas maternal grand-father, reprimanded her, as a result of which, she committed suicide. If she committed suicide, there was no earthly reason for Laliben, the informant, to involve her paramour falsely. In cross examination, there is nothing to show that Babarbhai had committed any crime. ( 13 ) THIS is a case where there was violent attack on the character of Gita for which questions were put to Laliben, mother of deceased Gita, without any basis whatsoever. It is also required to be noted at this stage that on behalf of the accused, a question was put to the informant that the deceased Gita had illicit relation with a son of one Koli-Patel and she came to know about the relation. It is on account of this relation, she was beaten by the informant and also reprimanded. It was also suggested that when she died, she was pregnant. All these suggestions are denied. In the instant case, the medical officer could have been questioned about illicit relation or whether the deceased, Gita, was pregnant or not at the relevant time. The absence of such questions to establish defence clearly indicates that false and frivolous allegations are made against the deceased person. Putting such questions amounts nothing but throwing a dirt on the deceased and that is required to be deprecated. The cross-examination is not limited one i. e. , son of Koli Patel with whom, the deceased had illicit relation as alleged but crossed the limit by putting a question that she had relation with others and she was enjoying free life and she was pregnant. The way in which the questions are put clearly shows that there was no substance in the questions and questions were put for putting the questions to the witness. Questions were put without any material. Had there been substance, the cross-examiner would have put questions to the doctor to elicit the truth. The way in which the questions are put clearly shows that there was no substance in the questions and questions were put for putting the questions to the witness. Questions were put without any material. Had there been substance, the cross-examiner would have put questions to the doctor to elicit the truth. ( 14 ) IT is the duty of the Court to carefully scan the evidence and properly shift the evidence. The Court is not expected to throw away the prosecution case on account of insignificant discrepancies and narrow technicalities. This is a case where human psychology and behavioural probability while assessing the testimonial potency of the evidence is required to be considered. Such aspects cannot be ignored. As said earlier, Laliben was made sandwich by act of her paramour. One side, Gita, who sustained burn injuries was alive and at that point of time, there was no danger in her mind that Gita will be no more. On the other side, she was required to consider love and affection shown by the accused who was keeping relations with her despite knowing that she was a married woman and was maintaining her by making some payments. Had Gita succumbed to the injuries, she would not have hesitated in disclosing the name immediately to the persons, but possibly seeing that Gita is alive and is likely to survive and as she was talking like a normal human being she might have thought it proper not to convey to others about the incident. But later on, may be on realising that her condition is such that she may not survive and before it can be too late, she conveyed to her sister Kanta about the incident and lodged the FIR. If such is the situation, then delay in disclosing the name should not affect the prosecution case, more particularly when there is nothing to point out that Laliben had a serious grievance against him so as to implicate him falsely in a murder charge. His conduct in making allegations against Gita also cannot be forgotten. ( 15 ) MEDICAL Officer, Anilbhai, has pointed out that she was conscious when she was brought to the Hospital. She was referred to Navsari Hospital for further treatment. She stated before the doctor that she sustained burn injuries at about 10. 00 p. m. on 20/04/1993. His conduct in making allegations against Gita also cannot be forgotten. ( 15 ) MEDICAL Officer, Anilbhai, has pointed out that she was conscious when she was brought to the Hospital. She was referred to Navsari Hospital for further treatment. She stated before the doctor that she sustained burn injuries at about 10. 00 p. m. on 20/04/1993. He has fairly stated that how she sustained burns was not disclosed by the patient or by her relatives. The medical officer has stated that he questioned the patient and whatever was stated, was recorded at the relevant time. She was alone. Thus, when Medical Officer questioned Gita, she was alone. Her mother was not there (close to her ). Therefore, on the part of Laliben, the question of not disclosing the name should not be given importance. She was not influenced by any of the relatives. If she would have stated the reasons, he would have noted the same. The medical officer has stated that though both the lips were injured on account of burn, she was able to speak and was clearly answering the questions. Her tongue was normal. In re-examination, he has stated that he did not put any question about cause of burn and she has not stated. In view the aforesaid evidence, it was contended that if at all the accused was responsible, she would have stated before the medical officer that her step father poured kerosene on her and set her on fire. It was submitted that at the earliest, she has not come out with the case and, therefore, it is not possible to believe that the accused has committed the crime. It is not possible to enter into question of `ifs and `buts and it would have been argued if she would have stated; that because of influence of relatives, she gave the name. But, the fact remains that the medical officer has clearly stated that he did not question about cause of burns and she has not answered that question. Whatever he has put to the witness has been noted by him. ( 16 ) ON account of the information being lodged by Laliben, statement [exh. 43] of Gita was recorded on 23/04/1993 by Vikramsinh Rathod - PSI (P. W.-11 ). She has stated that on 20/04/1993, she was in the company of her mother Laliben. When she was sleeping at about 10. ( 16 ) ON account of the information being lodged by Laliben, statement [exh. 43] of Gita was recorded on 23/04/1993 by Vikramsinh Rathod - PSI (P. W.-11 ). She has stated that on 20/04/1993, she was in the company of her mother Laliben. When she was sleeping at about 10. 00p. m. , her step-father, Gatubhai, came and she has stated that there was discussion about money to be paid for household expenses. On demand being made, her step-father (accused) got enraged and in view of exchange of words, she woke and intervened. After this intervention, kerosene was poured on her person and she was set on fire. ( 17 ) IN the dying declaration recorded before the Executive Magistrate, which is produced on record Exh. 38, the Executive Magistrate has put preliminary questions such as; name, fathers name, surname, age, occupation, place of residence, where the person was at the relevant time, presence of any other person in the room. From the answers to these questions, it appears that she answered all the questions and have been taken down by the Executive Magistrate. Obviously, these questions were put with a view to find out whether the patient was conscious or not, able to understand the questions or not. Looking to the questions and answers, it is clear that she was answering all the questions and on being satisfied, further questions were put. She stated that her grand-father, aunt, mother, maternal aunt Kantaben, Vinodbhai, etc. brought her to the Hospital. She was admitted during night hours. She further stated that there was exchange of words about money between her mother and step-father and her step-father set her on fire. The incident took place at village Malvada at about 10. 00 p. m. To a further question put to her, she stated that at the time of incident, her mother was present. To a further question, she stated that her step-father poured kerosene on her person and ignited a match-stick and set her on fire. To another question put to her, she stated that she is not educated and she does not know how to sign. The Executive Magistrate on being satisfied, recorded the dying declaration and also read over dying declaration to Gita and after hearing, in the presence of the Executive Magistrate, she put her thumb impression. To another question put to her, she stated that she is not educated and she does not know how to sign. The Executive Magistrate on being satisfied, recorded the dying declaration and also read over dying declaration to Gita and after hearing, in the presence of the Executive Magistrate, she put her thumb impression. ( 18 ) THE deceased Gita conveyed to the Executive Magistrate the circumstances leading to her receiving the burn injuries. Lalibens evidence is consistent and Executive Magistrate in his evidence has pointed out as to the manner in which he ascertained the capacity of the maker to make a statement. Reading the dying declaration, it is clear that she was in a position to make the statement. Nothing has been brought out in the cross-examination either to discard the testimony of the Executive Magistrate or Laliben. So far as the discrepancy pointed out by the learned counsel that in examination-in-chief, Laliben has stated that Gitaben was in the house and does not say that she was preparing Roti, that itself is insignificant and could not come in the way of the prosecution. It may be that she was in the house at the initial stage and after intervention, when her mother went outside, she might have engaged herself in preparing the food. This possibility cannot be ruled out and therefore, the contention that the evidence is required to be rejected cannot be accepted. No explanation whatsoever has been sought from Laliben about the so-called discrepancy. Evidence of Laliben appears to be truthful. Supreme Court in Kundula Bala Subramanyam v. State of Andhra Pradesh [ 1993 (2) SCC 684 ] pointed out that ""a dying declaration made by person on the verge of his death has a special sanctity as at that solemn moment, a person is most unlikely to make any untrue statement. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. The shadow of impending death is by itself the guarantee of the truth of the statement made by the deceased regarding the causes or circumstances leading to his death. A dying declaration, therefore, enjoys almost a sacrosanct status, as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of the dying person and evidence of the witnesses testifying to the same passes the test of careful scrutiny of the courts, it becomes a very important and a relevant piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. If there are more than one dying declarations, then the Court has also to scrutinise all the dying declarations to find out if each one of these passes the test of being trustworthy. The Court must further find out whether different dying declarations are consistent which each of therein material particulars before accepting and relying upon the same. " ( 19 ) THE deceased was in a proper mental condition to make the dying declaration. The Executive Magistrate in question and answer form recorded the dying declaration and he was examined as a witness before the Court. From the evidence, if the Court is satisfied that the deceased made a declaration before the Executive Magistrate and the Executive Magistrate has taken sufficient care to find out whether a person is in a position to make a declaration or not, there is no reason not to accept the same. ( 20 ) HEAD Constable, Madhukar Devchand (P. W.-6), who was discharging his duties as Head Constable at Chikhali Police Station on 21/04/1993 was asked by the Police Station Officer, Baburav Pundlik, Chikhali Police Station, to make inquiry at about 8. 05 a. m. on 21/04/1993. He has recorded the statement [exh. 58] of Gita wherein she has stated that when she was sleeping, her step-father, Gatubhai, poured kerosene on her person at about 10. 00 p. m. on 20/04/1993 and set her on fire. The Deputy Superintendent of Police has also put his endorsement on the said statement. In cross-examination, this witness has stated that he had no talk with doctor. He did not obtain certificate as to whether Gita was able to give statement or not. 00 p. m. on 20/04/1993 and set her on fire. The Deputy Superintendent of Police has also put his endorsement on the said statement. In cross-examination, this witness has stated that he had no talk with doctor. He did not obtain certificate as to whether Gita was able to give statement or not. He has also admitted that he has not recorded statement in the presence of the doctor. He has admitted that Gita had pain on account of burn injuries. He has admitted that before 08. 05 hours, there was no information about Gita having sustained burn injuries. He addressed a Yadi to the Executive Magistrate for recording her dying declaration. It was contended that the information was recorded subsequent to recording of statement by the head constable Madhukarbhai. The Police head constable recorded statement of Gita on 21/04/1993 which is placed on record at Exh. 58. She stated that on the date of incident, when she was sleeping, there was exchange of words about money between her mother and step-father. At about 10. 00 p. m. when she was lying in the bed, her step-father - Gatu Soma, came and poured kerosene on her person and threw a match stick on her after igniting it. She sustained burn injuries and started raising shouts. She came out of the house immediately and threw herself in the flowing water in a ditch, as a result of which, fire was extinguished. Her mother was also present and she was also shouting for help. Thereafter, her uncle - Prakash came running and Anilbhai and Kalyanbhai brought her in the Hospital. Her step-father ran away from the scene of occurrence. 20. 1 thus, in view of these three dying declarations, it was submitted that on account of inconsistency in dying declarations as well as oral evidence of Laliben, evidence is required to be rejected. 20. 2 the Court has also perused other dying declarations. So far as material facts and particulars are concerned, they are consistent with the dying declarations recorded by Executive Magistrate that the accused Gatu committed crime and therefore, in absence of any inconsistency in material particulars, the same must be accepted. In the instant case, when there is evidence of eye witness Laliben, paramour of accused Gatu, there is no reason to discard that evidence also. . In the instant case, when there is evidence of eye witness Laliben, paramour of accused Gatu, there is no reason to discard that evidence also. . ( 21 ) A suggestion was put by the accused that Gita herself committed suicide either because her grand father reprimanded her as she was not preparing good Roti or as a result of illicit relations, she became pregnant or her mother reprimanded her because of relations with others. It is required to be noted that the atrocity committed by the accused is of a serious nature. Defenceless and unprotected girl aged about 17 was set on fire. Merely she intervened as her mother was taken to the task on demand of money, the accused committed crime against a defenceless and unprotected girl. Her mother deposed before the Court about the involvement of the accused and , there is no reason as to why the evidence should not be accepted. A dying declaration before the Executive Magistrate mentions clearly that the accused committed the crime. The suggestions put to the mother are baseless. The accused has made allegations against the deceased without any basis. ( 22 ) NO arguments were advanced about homicidal death. No other arguments were advanced except that three dying declarations being inconsistent and oral evidence being inconsistent with earlier version, the same is doubtful and benefit of doubt should be given to the accused. The learned Counsel fairly submitted that other persons came to the spot subsequent tothe occurrence and, therefore, evidence would be hearsay. However, he submitted that Laliben has not disclosed to any of the witnesses that the accused committed crime and, therefore, her version of not disclosing the name immediately and disclosing the name on the next day morning becomes doubtful. ( 23 ) FOR not accepting dying declarations, it was submitted that the Apex Court has pointed out the guidelines in the case Paparambaka Rosamma vs. State Of Andhra Pradesh reported in JT 1999 (6) SC 585. It was submitted that in the instant case, there was no medical certificate that the injured was in a fit state of mind at the time of making the declaration, it would be very much risky to accept the subjective satisfaction of a Magistrate who arrived at a conclusion that injured Gita was in a fit state of mind at the time of making declaration. The Apex Court pointed out the facts and it appears that there were inherent defects and improbabilities in the dying declaration. In the dying declaration, Smt. Venkata Ramana stated that Accused - 1 to Accused - 3 poured kerosene and, thereafter she also poured kerosene on herself. It was placed on record that on earlier occasion, Smt. Venkata Ramana had tried to commit suicide. She has stated that she has not taken food for days. The Apex Court, in these circumstances, pointed out that Smt. Venkata Ramana was disappointed and frustrated in her married life and held that "in these circumstances, we find it difficult to accept the dying declaration wherein all the three appellants are alleged to have committed the crime. " ( 24 ) THE case of Ramachandra Reddy vs. The Public Prosecutor reported in A. I. R. 1976 SC 1994 was cited for the purpose of proposition that the Court must be satisfied that the deceased was in a fit state of mind to make the statement after the deceased had a clear opportunity to observe and identify his assailants and that he was making the statement without any influence or rancour. In that case also, the deceased was conscious at the place of occurrence, at the time when he was put on the lorry and also at the time when he was brought to the Nursing Home, he was in a position to speak, but, he did not disclose the names of the assailants to anybody. In paragraph - 10 of the Judgement, the Court pointed out that this conduct of the deceased could be explained only on two hypotheses, namely, either the deceased was not conscious at all and was not in a position to talk to anybody or that even though he was conscious, he did not disclose the occurrence to anybody because under the stress and strain of the assault, which took place admittedly at a time when darkness had set in and there was very little moonlight, he was not able to identify the assailants. The Apex Court pointed out that no third inference could be spelt out from the conduct of the deceased in not disclosing the name of the assailants on three occasions. The Apex Court pointed out that no third inference could be spelt out from the conduct of the deceased in not disclosing the name of the assailants on three occasions. In paragraph-6 of the Judgement, the Apex Court observed that a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of `question and answers and as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character. ( 25 ) IN the instant case, if the dying declarations recorded by Madhukar and Police-Sub-Inspector, Vikramsinh, are discarded on the ground that without requisitioning the services of the Magistrate, they were recorded and that such a practice is bad and should not be encouraged as held by the Apex Court in the case of Munna Raju vs. State Of Madhya Pradesh [a. I. R. 1976 SC 2199], the fact remains that there is a dying declaration recorded by the Executive Magistrate, which is in the question-answer form. Even if two dying declarations recorded by Madhukar, Police Head Constable and Vikramsinh, Police-Sub-Inspector are discarded on the ground that they are interested to some extent, that is to say, in success of prosecution, even then, fact remains that the Executive Magistrate, who is not concerned with the investigation and who is an independent officer, in discharge of his duty, has recorded the dying declaration. Looking to the questions and answers, document is required to be considered in its proper prospective. There is nothing to indicate that at the time of making dying declaration, she was not able to speak or she was unconscious. On the contrary, medical evidence of the doctors, namely, Anil Durlabhbhai Patel (P. W.-7) reveals that she was conscious and was able to speak. Dr. Parimalaben (P. W.-12) in her cross-examination stated that it is incorrect to say that the person on account of sustaining burn injuries on lips and chin cannot speak. The witness has explained that if tongue is safe, person can speak. Gitas tongue had no burn injury. She has stated that it is incorrect to state that person becomes unconscious if he or she sustains burn of 85 to 90 degrees. The witness has explained that if tongue is safe, person can speak. Gitas tongue had no burn injury. She has stated that it is incorrect to state that person becomes unconscious if he or she sustains burn of 85 to 90 degrees. On the contrary, she clarified that person having more than 85 to 95 degree burn injuries or even 100% burn injuries can remain conscious. For this purpose, she relied on Modis Medical Jurisprudence. She has stated that person having 85 to 90 degree burn maintains concentration and can remain in a position to answer the questions. It is required to be noted that the following injuries on the person of the deceased were found and noted by Dr. Parimalaben. "superficial 1 and 2 degree burn over lower half of face upper part of chest both the sides of chest, shoulders, both thighs, right leg; deep burns slough over lower part of chest abdomen whole back both upper extremities, both thighs, anterior, superficial burns over left part Except left leg and both feet scalp hair burns shown 85% - 90%"25. 1 thus, reading the postmortem note and the evidence, it is clear that there were superficial burns of 1 to 2 degree on the lower half of the face, upper part of the face and both the side of face, shoulder and thighs. It also appears that the deep burns were caused on the lower part of the chest, abdomen, upper extremities and thigh portion. Reading oral evidence of the medical officer and postmortem note, it is clear that there was no severe injuries on the face, which would come in her way for making expression by words. Thus, it is clear that she was in a position to make a statement and as per the Executive Magistrate, she was able to understand the questions put to her. ( 26 ) SHRI Ganpatbhai Chaudhary, Executive Magistrate (P. W.-10), has specifically stated that she was conscious and she was in a position to speak. He has denied the suggestion that PSI was present. He has stated that whether the patient was in a position to make a declaration or not, has not been inquired by him [from Medical Officer]. No doubt, he has stated that he has not met the doctor. He has not taken even fitness certificate from the medical officer. He has denied the suggestion that PSI was present. He has stated that whether the patient was in a position to make a declaration or not, has not been inquired by him [from Medical Officer]. No doubt, he has stated that he has not met the doctor. He has not taken even fitness certificate from the medical officer. He has denied the suggestion that patient was not answering fluently. He has also denied the suggestion that the injured was giving statement in the colloquial language used in the area and he translated in Gujarati. He has denied the suggestion that dying declaration is prepared in the office. He has also denied that no such dying declaration is recorded as alleged. As discussed earlier, dying declaration is inquestion-answer form and recorded after making preliminary inquiry about the name and other details. On being satisfied that the patient is in a position to make a statement, the statement was recorded. ( 27 ) IT is pointed out as to what Laliben stated in her evidence vide exh. 15. The presence of the accused has been established at the scene of occurrence. There was no earthly reason for him to run away. If Gita herself attempted to suicide by pouring kerosene on herself as suggested by him in cross-examination, he would have not run away from the house and would have assisted the family members. As stated earlier, Laliben had no grudge against the accused. The accused was the person who was maintaining her and in absence of any serious dispute, it is not possible to believe that she would implicate the accused falsely. It is also indicated earlier that after exchange of words, Laliben the informant went outside the home with her son - Raju and in the meanwhile, the accused poured kerosene on the person of Gita and the incident had taken place in quick succession. Evidence of a rustic witness is required to be appreciated in the instant case. ( 28 ) MUCH more was stated about absence of certificate having been not obtained for recording the dying declaration and, therefore, it cannot be acted upon. When the Executive Magistrate himself ascertained that the patient was in a fit state of mind to make declaration, there is no need for certificate of the nature demanded in the instant case. ( 28 ) MUCH more was stated about absence of certificate having been not obtained for recording the dying declaration and, therefore, it cannot be acted upon. When the Executive Magistrate himself ascertained that the patient was in a fit state of mind to make declaration, there is no need for certificate of the nature demanded in the instant case. Medical evidence does not suggest that Gita on sustaining burn injuries was not able to speak, but, the contrary evidence reveals that she was answering the questions put by the doctor. Considering medical certificate, extent of burns and satisfaction of the executive magistrate that she was conscious and in a position to make a declaration, merely because he has not obtained fitness certificate of the doctor, documentary evidence, namely dying declaration will not lose its evidentiary value. The Apex Court in the case of Koli Chunilal Savjibhai vs. State of Gujarat reported in (1999) 9 SCC 562 observed that the requirement of an endorsement as to mental fitness by the doctor is only a rule of prudence and the ultimate test is whether dying declaration is truthful and voluntary. No doubt in that case, the deceased made two dying declaration; one in the form of First Information Report and other before the magistrate. The magistrate deposed before the Court that in the hospital on being questioned, the doctor informed that the deceased was in a conscious condition and made an endorsement to that effect. Both dying declarations were consistent with, and corroborated, each other and the allegation of tutoring by relatives, on facts, were found baseless. In the case of Vajrala Paripuranachary vs. State of A. P. reported in (1998) 6 SCC 463 , the judicial magistrate was examined in the Court. The impression of the magistrate was reflected in the dying declaration reading the questions put by him and the answers given by the injured to each one of them. The Supreme Court observed that not even one answer would show that her cognitive faculties were then impaired. In Ram Bihari Yadav vs. State of Bihar reported in (1998) 4 SCC 517 , the Apex Court pointed out that the mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matter which can be observed by any person. In Ram Bihari Yadav vs. State of Bihar reported in (1998) 4 SCC 517 , the Apex Court pointed out that the mental condition of the maker of the declaration, alertness of mind, memory and understanding of what he is saying, are matter which can be observed by any person. ( 29 ) IN the instant case, reading the dying declaration, that is to say, questions and answers put to the deceased and the evidence of the Executive Magistrate before the Court, it is clear that there was satisfaction on the part of the Executive Magistrate that the injured was in a fit state of mind and was in a position to make a statement and true disclosure of the occurrence. In case of Bolem Bhaskara Rao Vs. State of A. P. , reported in 1999 (Supp.) (4) SCC 211, the Apex Court held that the question whether the injured person who made the statement was in a fit condition depends on several circumstances. The Court has to look the entire statement and the answers duly recorded by the magistrate along with doctors evidence. The magistrate in that case was fully satisfied that the deceased was in a fit condition while making the statement. It was held that on examination of the questions and answers, particularly, the first question and the answer to that, it is clear that the deceased must have been in a fit condition to make the statement. Therefore, it is clear that when person, namely, Executive Magistrate, is satisfied on putting questions and getting answers that the person is in a fit condition to make a declaration, it is difficult to accept the contention that the same should not be accepted because he did not obtain certificate that the maker was in a fit condition to make a statement. It cannot be rejected merely on the ground that there is no endorsement of the medical officer. It is also required to be noted that in case of Paniben vs. State of Gujarat reported at 1993 (2) GLR 985, the Apex Court reiterated that the court must be satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailants. In the instant case, the Executive Magistrate was satisfied that the injured was in a fit condition to make a declaration. In the instant case, the Executive Magistrate was satisfied that the injured was in a fit condition to make a declaration. In dying declaration, person has to narrate gist of the occurrence and the person is not required to state before the Executive Magistrate all the details. The sum and substance of dying declaration, Exh. 38, recorded by the executive magistrate, clearly reveals that at the time of occurrence, Laliben was present and her step-father, Gatubhai alias Champak poured kerosene on the person of the deceased and set her ablaze. It is also clear from dying declaration that there was exchange of words between her mother (Laliben) and Gatubhai about money which gave rise to the occurrence. The evidence is concurrent that there was none else in the house, hence, the presence of the accused-assailant is established. Dying Declaration may precisely indicate the manner in which assault took place but, once, Exh. 38 recorded by the Executive Magistrate is accepted to be a truthful version of the deceased, then no further evidence is required. ( 30 ) HOWEVER, in the instant case, over and above Exh. 38, dying declaration of the deceased Gita, there is evidence of Laliben, mother of the deceased and paramour of the accused. In chief examination, she has clearly stated that Gita was in the house and on account of exchange of words, she came and intervened. After this, she went outside with Raju as he wanted to answer a call of nature. Soon thereafter, the accused poured kerosene on the person of the deceased and set her on fire. Gita went out raising shouts and threw herself in flowing water in the ditch and the accused ran away. Merely because, she has stated in cross-examination that she (Gita) was preparing food, her evidence cannot be discarded. She has denied thesuggestion in her evidence that Gita was sleeping and she came when there was exchange of words between her and Gatu. and thus, reading the dying declaration and the evidence of Laliben, it is difficult to say that both run counter to each other. On the contrary, Laliben has deposed about the incident that happened in the house. Similarly, Gita in her dying declaration stated as to what happened in the house. It is, therefore, not possible to accept the contention that oral evidence of Laliben is inconsistent with dying declaration. On the contrary, Laliben has deposed about the incident that happened in the house. Similarly, Gita in her dying declaration stated as to what happened in the house. It is, therefore, not possible to accept the contention that oral evidence of Laliben is inconsistent with dying declaration. ( 31 ) THE sum and substance of the evidence on record clearly establishes that the prosecution has proved the case beyond reasonable doubt. Dying declaration, Exh. 38, which is a piece of evidence, cannot be discarded merely because the Executive Magistrate has not contacted the doctor. Dying declaration is to be accepted as it is recorded in question-answer form by the Executive Magistrate who had no personal interest in the matter and had no personal grudge against the accused. As the person, who is impartial, has recorded statement after satisfying himself by putting some preliminary questions to ascertain as to whether the person was in a position to make true disclosure or not, there is no reason to discard the same. 31. 2. CONSIDERING the details of questions and answers and reading the same, at the cost of repetition, it is required to be stated that there is nothing to discard the dying declaration. 31. 3 the dying declaration clearly reveals that Gita was in a position to understand and was in full sense. She had no interest in falsely involving her step-father who was maintaining the family, may be by giving small amount on every fortnight or month. As discussed earlier, about character of Gita baseless questions were put to her mother. The questions were put in a manner so as to add fuel to the fire. The mother lost her daughter and on behalf of her step-father, questions without any basis were being put. The character assassination cannot be permitted. If there was some substance, the matter would have been different. Even the medical evidence does not support the allegations made against the deceased by the defence. 31. 4 the Executive Magistrate after ascertaining fitness of the injured to make a declaration and on satisfying that she was conscious and able to speak, recorded the dying declaration, Exh. 38. There is no earthly reason to discard the same. On the contrary, this is required to be accepted and it is a sufficient piece of evidence on the basis of which, the accused can be held guilty. 38. There is no earthly reason to discard the same. On the contrary, this is required to be accepted and it is a sufficient piece of evidence on the basis of which, the accused can be held guilty. ( 32 ) AS stated earlier, there is evidence of Laliben and that independently from the dying declaration is sufficient to accept the case put forward by the prosecution. Merely because Laliben did not disclose the name of the accused, in the facts and circumstances of the case, it would not be sufficient to discard her evidence. What was her state of mind at the relevant time was also a relevant factor. At the relevant time, Gita was alive. She had to take a decision to lodge information against her paramour, who was maintaining the family. She was also required to give immediate assistance to injured Gita. These were the factors which might have led to pay attention on the condition of Gita. The accused was not a stranger but was her paramour and step-father of Gita. Since about eight years, they were living as husband and wife. She delivered a child out of this illicit relation. It is true that she has not disclosed the name immediately to the persons who came to the spot. But, at the same time, one has to remember that a person was required to take a decision which may again come in her way for the whole life. Under such a situation, one may feel little embarrassed in disclosing the name as the incident took place out of making demand of money. There was question of long relation of eight years. A question of maintenance of Raju and herself was the aspect and keeping this aspect in mind, she might be hesitating in disclosing the name more particularly when Gita was alive. It is in view of this situation, non-disclosure of the name immediately should not come in way in accepting evidence of Laliben, more particularly, when on the next date, she conveyed to Kanta, her sister, that Gatu set Gita on fire and soon thereafter, the information was lodged before the Police. There is no positive evidence to indicate that there is meeting of minds to concoct a story. A suggestion was put to her that her father reprimanded Gita, therefore, she committed suicide. There is no positive evidence to indicate that there is meeting of minds to concoct a story. A suggestion was put to her that her father reprimanded Gita, therefore, she committed suicide. The grand-father of Gita was hard of hearing, almost deaf, and his vision was very poor except, the suggestion, nothing comes on record and therefore, it is difficult to accept such suggestion against evidence on oath and dying declaration. The suggestion was made that Babarbhai reprimanded Gita because Gita was preparing food at late night and on account of this, she committed suicide. It is difficult to accept that merely because food was not prepared in time, Babarbhai reprimanded her and she committed suicide. Evidence of Laliben clearly indicates that she was preparing food and Babarbhai was in other house. If there would have been any substance, she would have conveyed the same to her mother. It appears that the defence has raised questions for the sake of taking defence. No other submission were made before this Court. ( 33 ) IN view of what is stated hereinabove, it is difficult to accept the defence version. The appeal is required to be dismissed and stands dismissed accordingly. .