P. S. NARAYANA, J. ( 1 ) HEARD Sri Ramakrishnam raju representing Sri N. Ravi Prasad, the counsel for the appellant-accused and the learned Additional Public Prosecutor. ( 2 ) THE appellant-accused had preferred this appeal aggrieved by the conviction and sentence imposed by the Sessions judge, Ongole in S. C. No. 5 of 1995 dated 14-8-1997 against him for the offence under section 304 (1) IPC. ( 3 ) THE Inspector of Police, Ongole rural Circle, filed a charge-sheet against the sole accused before the III Additional Munsif magistrate, Ongole, for the offence under sections 498-A and 302 of Indian Penal code in Crime No. 12 of 1994 of naguluppalapadu Police Station and the same was registered as P. R. C. No. 17 of 1994 and the same was committed to the Court of session for trial. ( 4 ) THE prosecution examined P. Ws. l to 12 and got marked Exs. Pl to P13, and m. Os. l to 4, and Ex. D1 was marked on behalf of defence. On appreciation of the oral and documentary evidence, the accused was found not guilty for the offence under Sections 498-A and 302 IPC, but however he was found guilty for an offence under Section 304 (1) IPC and accordingly, the accused was sentenced to suffer rigorous imprisonment for four years and to pay a fine of Rs. 500/- (Rupees Five hundred only), in default, to suffer simple imprisonment for six months for the said offence. Aggrieved by the same, the present appeal is preferred. ( 5 ) SRI Ramakrishnam Raju, the learned counsel representing the appellant-accused had drawn the attention of this Court to the evidence of P. W. 3, aged about 12 years, who is the son of the accused and the deceased, and would submit that in the light of the evidence of P. W. 3, who is the only eye-witness to the incident, Ex. P2 and Ex. P 6 the dying declarations recorded by P. W. 5 and P. W. 7 respectively, cannot be believed. The learned Counsel also placed strong reliance in "paparambaka Rosamma and others v. State of Andhra Pradesh", 1999 (2) ALD (Crl.) 641 (SC) = 1999 (2) ALT (Crl.) 345 (SC ). The learned Counsel also further pointed out that inasmuch as Ex. P 2 and Ex. The learned Counsel also placed strong reliance in "paparambaka Rosamma and others v. State of Andhra Pradesh", 1999 (2) ALD (Crl.) 641 (SC) = 1999 (2) ALT (Crl.) 345 (SC ). The learned Counsel also further pointed out that inasmuch as Ex. P 2 and Ex. P6 are not trustworthy on the basis of the said dying declarations, the conviction and sentence awarded by the learned Sessions Judge, cannot be sustained. ( 6 ) ON the contrary, the learned additional Public Prosecutor had taken this court through the evidence of P. W. 5 and would submit that the Additional Judicial magistrate of I class, Ongole, who had recorded the dying declaration, had deposed well about Ex. P2 and this itself would be sufficient, even otherwise, there is another dying declaration Ex. P6 made to the Police Officer-P. W. 7 and both the dying declarations are consistent and hence, the conviction and sentence imposed are to be confirmed. The learned Additional public Prosecutor also placed reliance on laxman v. State of Maharashtra, 2002 (2) ald (Crl.) 505 (SC) = 2002 SCC (Crl) 1491 and Shanmugam v. State of T. N. , 2003 (1) ALD (Crl.) 223 (SC) = 2003 SCC (Crl.) 1501. ( 7 ) THE case of the prosecution is that the marriage of the deceased Ghanta dhanalakshmi was celebrated with the accused at about 12 years ago and they were blessed with one male child and one female child during their wedlock. The accused is a spend thrift and the deceased was objecting to the said attitude and the accused used to dispose of the properties for his personal expenses and in spite of repeated requests, the accused was not hearing the deceased and used to assault her often. While so, on 27-2-1994, the accused gave two he buffaloes to Punam anjireddy in full satisfaction of debt due to him and the deceased questioned about his behavior, for which the accused grew wild, abused her, and at about 10. 00 a. m. when deceased Ghanta Dhanalakshmi was preparing food, the accused poured kerosene on her and lit fire, and that the accused also sustained burn injuries. The entire body of the deceased was with burns and she raised alarm and ran out of the house and fell near the water tap. 00 a. m. when deceased Ghanta Dhanalakshmi was preparing food, the accused poured kerosene on her and lit fire, and that the accused also sustained burn injuries. The entire body of the deceased was with burns and she raised alarm and ran out of the house and fell near the water tap. On hearing the alarm, Bheemavaram Venkata subbaiah, Bhupathi Nagendramma and some others came to the scene of offence, found the deceased with bum injuries and put off the flames. On coming to know about the occurrence, Ghanta Byaragamma, the mother-in-law of the deceased rushed to the house and shifted her to private hospital and then to Government Hospital, Ongole. On intimation, H. C. 460 of Ongole I Town police Station visited the hospital and recorded the statement of deceased Ghanta dhanalakshmi at 12. 00 noon and forwarded the same to Naguluppalapadu on the point of jurisdiction. At about 12. 05 noon, 11 Additional Munsif Magistrate, Ongole, visited the Government Hospital, Ongole and recorded dying declaration of the deceased while she was conscious and coherent. The statement recorded by the head-Constable was registered as Crime no. 12 of 1994 under Section 307 of I. P. C. and the deceased while undergoing treatment, succumbed to injuries at 7. 00 p. m. on 27-2-1994. On receipt of the death intimation, the Sub-Inspector of Police altered the section of law to Section 302 of ipc and submitted FIR. The Inspector of police took up investigation, conducted inquest over the dead body of the deceased in the presence of Ammanabrolu Subba rao, Inaganti Pitchireddy and others and examined Ghanta Sreenivasa Rao and ghanta Sivaparvathi, the son and daughter of the deceased and accused, and recorded their statements. Thereafter, the dead body of the deceased was sent for postmortem examination. Dr. G. Rama Murthy, conducted autopsy over the dead body of the deceased and issued post-mortem certificate opining that the deceased would have died out of shock due to extensive burns. The accused had taken treatment in Government Hospital on 27-2-1994 and the Medical Officer, Dr. G. Madhukiran reddy, who gave treatment issued certificate that the injuries are simple in nature. On 27-2-1994, the accused after discharge from the hospital, he was arrested and sent for remand. Except the two dying declarations, Ex. The accused had taken treatment in Government Hospital on 27-2-1994 and the Medical Officer, Dr. G. Madhukiran reddy, who gave treatment issued certificate that the injuries are simple in nature. On 27-2-1994, the accused after discharge from the hospital, he was arrested and sent for remand. Except the two dying declarations, Ex. P2 and P6 recorded by p. W. 5 and P. W. 7, and the evidence of P. W. 3 the child witness, there is no other evidence available on record. ( 8 ) P. W. I is the father of the deceased. No doubt, he deposed about the marriage and as to how the accused used to treat the deceased and the other aspects. ( 9 ) P. W. 2, B. Nagendramma, deposed that Ghanta Dhanalakshmi died about 3 years ago and that on the date of incident, she went to fields and returned from fields, and she saw Dhanalakshmi with burns, and the accused was present and found his right hand with burns. She further deposed that the accused asked her to wear a saree to Dhanalakshmi, but she refused. She deposed that Dhanalakshmi was taken to a private hospital and doctor advised to take her to another hospital as he had no medicines. This witness was not cross-examined. This witness only just deposed that she saw Dhanalakshmi with burns. ( 10 ) THE evidence of P. W. 3 is to the effect that because of the sale of the buffaloes, there was a quarrel between his father and mother. He deposed that his father went to bring water, and while going to fetch water, his father asked his mother to cook food and his mother poured kerosene out of anger and P. W. 3 kept the kerosene bottle aside, she beat P. W. 3 and again poured the remaining kerosene and she went out and tried to lit fire to herself and she again beat P. W. 3 and again his mother lit fire to herself. Saree of his mother was burnt and he was crying. In the meantime, his father came and poured water on his mother and his father removed the saree of his mother as still there were flames on the body of his mother. P. W. 3 further deposed that the flames were not put off even pouring of water and his father received bums to his hands. In the meantime, his father came and poured water on his mother and his father removed the saree of his mother as still there were flames on the body of his mother. P. W. 3 further deposed that the flames were not put off even pouring of water and his father received bums to his hands. Again his father poured water on his mother and put off the flames and his father went and brought a saree and gave it to his mother. This witness also deposed that his paternal grandmother Ghanta Byaragamma came and she had taken his mother to private medical practitioner. Certain questions were put and Question No. 8 is, what benefit you will get if you give evidence as to the death of your mother ? and answer is "my father will be released". The Court was satisfied that the witness was able to give answers on understanding the questions ( 11 ) P. W. 4 is a registered private medical practitioner who deposed that ghanta Dhanalakshmi was brought to him by her mother-in-law Ghanta Byaragamma, and the said Byaragamma told him that dhanalakshmi received burn injuries and he advised her to take Dhanalakshmi to government Hospital. ( 12 ) P. W. 5 is the Additional Judicial magistrate of I Class, who had recorded the dying declaration of Ghanta Dhanalakshmi. Ex. P 1 is the requisition received by him. Ex. P 2 is the dying declaration. He deposed that while recording dying declaration, the deponent was conscious and in a fit condition to give coherent statement and after recording the statement, the statement was read over to the declarant and having admitted by her to be true and correct, he got her LTM obtained underneath the statement. He deposed that at the time of recording the statement, the doctor and his attender were present throughout, and the doctor also certified on the statement Ex. P2 that the deponent was conscious and coherent while recording the statement and that no other person was present at the time of recording the statement of the deponent except P. W. 5, doctor and the attender. He was not cross-examined. The relevant portion of Ex. P2 is as hereunder: q: Can you say how this stage happened to you? ans : "today morning at 10. 00 a. m. , I argued with my husband not to sell buffaloes to raghubabu. He was not cross-examined. The relevant portion of Ex. P2 is as hereunder: q: Can you say how this stage happened to you? ans : "today morning at 10. 00 a. m. , I argued with my husband not to sell buffaloes to raghubabu. He did not care my words and sell away. I questioned him why you are doing like this, confining me without going to my mother s house. Then my husband poured kerosene on me and got fire with matchstick. Except my Children no body is there. My mother-in-law, Brother-in-law brought me to hospital. " ( 13 ) P. W. 6 is the Village Administrative officer, Machavaram, who deposed about the seizure of kerosene tin, half burnt hair, petty coat and burnt sari pieces M. Os. 1, 2, 3 and 4 and had deposed about Ex. P 3 observation report. ( 14 ) P. W. 7 is the head-constable who had recorded Ex. P6 statement. The said statement reads as hereunder:"while I was preparing to cook food my husband abused me and poured kerosene on me and set fire and when my entire body is in flames, I raised alarm and came out from the house and hit to a tub infront of my house and fell down. At that time my neighbours Madhavarao s wife Nagendram and some others prevented the burning fire. Later they brought me to Government hospital, Ongole for treatment. Read over to me and found to be correct. "no doubt, the statement was recorded by a police Officer, head-constable. But, it is pertinent to note that apart from Ex. P6, ex. P2 recorded by P. W. 5 also is available on record. ( 15 ) P. W. 8 is the Civil Assistant surgeon, who deposed that Ex. P 5 is the intimation issued and in pursuance of ex. P 5, P. W. 7 came and recorded the statement of Dhanalakshmi, where he made an endorsement that the patient was conscious and coherent while giving statement and Ex. P 6 contains such endorsement. Ex. P 1 is the requisition sent by him to II Additional Munsif Magistrate, ongole. She deposed that in pursuance of ex. Pl, P. W. 5 came to the hospital and recorded the statement of Dhanalakshmi on 27-2-1994 at 12. 30 a. m. , in his presence and he made an endorsement on Ex. P 6 contains such endorsement. Ex. P 1 is the requisition sent by him to II Additional Munsif Magistrate, ongole. She deposed that in pursuance of ex. Pl, P. W. 5 came to the hospital and recorded the statement of Dhanalakshmi on 27-2-1994 at 12. 30 a. m. , in his presence and he made an endorsement on Ex. P2, the statement recorded by the Magistrate that the patient was conscious and coherent while taking the statement. This witness also deposed about the injuries. 1. Burnt areas present over front of right forearm and part of palm and back of right fore-arm and hand. 2. Burnt area of size 3 x 3 cms. present over back of left thumb. This witness is of the opinion that the above injuries are simple in nature and fresh and Ex. P 7 is the wound certificate issued by him. ( 16 ) P. W. 9 is the Civil Assistant surgeon, who had conducted post-mortem on the dead body of Ghanta Dhanalakshmi, found the following injuries: external appearances: rigor mortis present in all the limbs. Burns all over the body about 80 to 90% except back of the both legs. Burnt tags of cuticle are hanging here and there. On cut section, tissues are congested and dark red. The above bums are ante-mortem in nature. Internal examination: no fractures on head. Brain - Normal in size. On cut section, congested and dark red. No fracture of hyoid bone. No fracture of ribs. Lungs are normal in size. On cut section, congested and dark red. Trachea congested and dark red. Heart: normal in size. The chambers are empty. Stomach: Normal in size, contains about 100 cc of semi-digested fluid contents. Intestines are filled with gases. Liver, spleen, Kidneys are normal in size, on cut section congested and dark red. Urinary bladder: No pelvic fractures. Uterus: Normal in size and empty. No factures of spinal column. This witness is of the opinion that the deceased would appear to have died of shock due to extensive burns and the time of death is about 18 to 24 hours prior to post-mortem examination. Ex. P 8 is the post-mortem certificate. Urinary bladder: No pelvic fractures. Uterus: Normal in size and empty. No factures of spinal column. This witness is of the opinion that the deceased would appear to have died of shock due to extensive burns and the time of death is about 18 to 24 hours prior to post-mortem examination. Ex. P 8 is the post-mortem certificate. ( 17 ) P. W. 10 is the Police Constable, who was present when the inquest was held over the dead body, had seized M. O. I burnt green colour petticoat pieces and M. O. 2 burnt terrycotton sari pieces. ( 18 ) P. W. 11, who was Sub-Inspector of police at the relevant point of time, deposed that on 27-2-1994 he received statement of the deceased from I Town Police Station on the point of jurisdiction and registered the same as Crime No. 12 of 1994 and the statement of the deceased is Ex. P6 and Ex. P9 is the FIR and along with Ex. P6, he received hospital intimation Ex. P5 and the statement of the accused. Ex. P 10 - statement of accused recorded by Head Constable of I Town Police station, Ongole. This witness also deposed about the observation report, visiting scene of offence, seizure of M. Os and preparation of rough sketch-Ex. P 11. This witness also deposed that after receiving death intimation ex. P 12, he had altered the first information report Ex. P 13 into Section 302 of I. P. C. This witness was no doubt cross-examined at length. ( 19 ) P. W. 12 is the Inspector of Police who deposed about the details of investigation and holding of Ex. P 8 inquest and recording of certain statements. No doubt through this witness, Ex. D 1 was proved to the effect that P. W. 1 had stated before him as in Ex. D l. On the material available on record, it is clear that there are two dying declarations viz. , Ex. P2, and Ex. P6 recorded by P. Ws. 5 and 7 respectively. Strong reliance was placed in the decision Shanmugam v. State of T. N. (supra) wherein it was held that the dying declaration can be the sole basis for conviction. , Ex. P2, and Ex. P6 recorded by P. Ws. 5 and 7 respectively. Strong reliance was placed in the decision Shanmugam v. State of T. N. (supra) wherein it was held that the dying declaration can be the sole basis for conviction. The defence Counsel no doubt placed strong reliance on the decision of a three Judge Bench Paparambaka Rosamma and others v. Sate of Andhra Pradesh (supra) wherein at Para 9, the Supreme Court observed: it is true that the Medical Officer Dr. K. Vishnupriya Devi (P. W. 10) at the end of the dying declaration had certified "patient is conscious while recording the statement. " It has come on record that the injured Smt. Venkata Ramana had sustained extensive burn injuries on her person. Dr. P. Koteswara rao (P. W. 9) who performed the post-mortem stated that injured had sustained 90% bum injuries. In this case as stated earlier, the prosecution case solely rested on the dying declaration. It was, therefore, necessary for the prosecution to prove the denying declaration being genuine, true and free from all doubts and it was recorded when the injured was in a fit state of mind. In our opinion, the certificate appended to the dying declaration at the end by Dr. Smt. K. Vishnupriya Devi (P. W. 10) did not comply with the requirement inasmuch as she has failed to certify that the injured was in a fit state of mind at the time of recording the dying declaration. The certificate of the said expert at the end only says that "patient is conscious while recording the statement". In view of these material omissions, it would not be safe to accept the dying declaration (Ex. P 14 ) as true and genuine and was made when the injured was in a fit state of mind. From the judgments of the Courts below, it appears that this aspect was not kept in mind and resultantly erred in accepting the said dying declaration (Ex. P 14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below. P 14) as a true, genuine and was made when the injured was in a fit state of mind. In medical science two stages namely conscious and a fit state of mind are distinct and are not synonymous. One may be conscious but not necessarily in a fit state of mind. This distinction was overlooked by the Courts below. Reliance also was placed in the decision laxman v. State of Maharashtra (supra) of a Five - Judge Bench wherein the Apex Court had held: the juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which may affect their truth. The situation in which a man is on the deathbed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Courts insist that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has always to be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like a Magistrate or a doctor or a Police Officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise. The Court also in the aforesaid case relied upon the decision of this Court in Harjit kaur v. State of Punjab, (1999) 6 SCC 545 = 1999 SCC (Crl.) 1130), wherein the magistrate in his evidence had stated that he had ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect and merely because an endorsement was made not on the declaration but on the application would not render the dying declaration suspicious in any manner. For the reasons already indicated earlier, we have no hesitation in coming to the conclusion that the observations of this Court in paparambaka Rosamma v. State of A. P. , (1999) 7 SCC 695 = 1999 SCC (Crl) 1361 (at SCC P. 701, Para 8) to the effect that:"in the absence of a medical certification 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 opined that the injured was in a fit state of mind at the time of making a declaration"has been too broadly stated and is not the correct enunciation of law. It is indeed a hypertechnical view that the certification of the doctor was to the effect that the patient is conscious and there was no certification that the patient was in a fit state of mind especially when the Magistrate categorically stated in his evidence indicating the questions he had put to the patient and from the answers elicited was satisfied that the patient was in a fit state of mind thereafter he recorded the dying declaration. Therefore, the judgment of this court in Paparambaka Rosamma v State of a. P. , (\999) 7 SCC 695 = 1999 SCC (Crl) 1361, must be held to be not correctly decided and we affirm the law laid down by this court in Koli Chunilal Savji v. State of gujarat, (1999) 9 SCC 562 = 2000 SCC (Crl.) 432. ( 20 ) ELABORATE findings had been recorded by the learned Judge while arriving at the conclusion as to why the offence falls under Section 307 (4) of I. P. C. on the strength of the evidence of P. Ws 1 to 12 and Exs. Pl to P13 and after considering all the aspects. It is no doubt true that P. W. 3, the child witness, had given a different version. But the said version was not relied on by the learned Judge for certain reasons recorded. May be that this boy with the fond hope of getting his father out, might have deposed in such a fashion. It is no doubt true that P. W. 3, the child witness, had given a different version. But the said version was not relied on by the learned Judge for certain reasons recorded. May be that this boy with the fond hope of getting his father out, might have deposed in such a fashion. ( 21 ) IN the light of the same, the conviction is hereby confirmed, but however, since the children are to be brought up by the appellant-accused and nobody is there to look after them, the sentence of rigorous imprisonment is hereby reduced to a period of 2 1/2 years, and as far as the imposition of fine and in default, the simple imprisonment of six months, the same is hereby confirmed. It is brought to the notice of this Court that the fine amount had already paid and he was released on bail. Except to the modification of the sentence referred to supra, the appeal shall stand dismissed. The bail bonds shall stand cancelled. The accused to surrender to serve the rest of the sentence. The accused also is entitled to the benefit of set off, if any, in accordance with law.