Judgment ( 1. ) THIS appeal by the appellant is directed against the judgment and order dated 18-9-2000 passed by the learned Addl. Sessions Judge, Indore in S. T. No. 452/1999, by which the appellant stands convicted under Section 302 of the IPC and sentenced to undergo R. I. for life and to pay a fine of Rs. 1,000/-with defaulting clause of imprisonment for four months SI. ( 2. ) BRIEFLY stated the prosecution case against the appellant is that on 3-10-1999 in the night at 2 - 2. 30 AM the appellant Narayansingh set fire to his wife Laxmibai after pouring kerosene oil inside his residential house situated in shivshakti Nagar, Indore. She was taken for treatment to M. Y. Hospital by her brother-in-law Dalpati (Jeth) and mother-in-law (Kesarbai ). Police of Police station, MIG, Indore received information from M. Y. Hospital to this effect which was recorded in Rojnamcha Sanha No. 178 vide Ex. P-l3 and its true copy is P-13/c proved by Shyamveer Singh (P. W. 9), Head Constable. Police reached at M. Y. Hospital and got recorded her dying declaration (Ex. P-8) by Executive magistrate Jitendra Singh Pawar (P. W. 6 ). Laxmibai was admitted in burn unit and she died because of burn injuries on 7-10-1999 at 10. 25 A. M. in the Hospital. MIG Police upon receiving information of her death recorded intimation No. 68/99 (Ex. P-16/c ). Police prepared inquest of the dead body (Ex. P-10) and sent the same for post-mortem examination. Post-mortem was performed by Dr. N. M. Unda (P. W. 16) and Dr. T. S. Thakur. Post-mortem report is Ex. P-12. On the basis of the information Crime No. 746/1999 under Section 307 of the IPC was registered on 3-10-1999 at 5. 05 A. M. vide Ex. P-21 by Subhash Chandra, ASI (P. W. 12 ). Investigation was done by SHO Jorsingh Bhadoria (P. W. 11) and subhashchandra, ASI (P. W. 12 ). P. W. 12 also recorded statements of deceased laxmibai (Ex. P-20) signed by Laxmibai. After due investigation, charge-sheet was filed against the appellant. ( 3. ) THE appellant abjured his guilt. According to him, he was falsely implicated. He pleaded defence of alibi and examined three witnesses in his defence whereas prosecution has examined 16 witnesses and got proved 24 documents from the witnesses. P-20) signed by Laxmibai. After due investigation, charge-sheet was filed against the appellant. ( 3. ) THE appellant abjured his guilt. According to him, he was falsely implicated. He pleaded defence of alibi and examined three witnesses in his defence whereas prosecution has examined 16 witnesses and got proved 24 documents from the witnesses. The learned Trial Court, after hearing both the parties, convicted the appellant as mentioned hereinabove. ( 4. ) THE learned Counsel for appellant has submitted that learned Trial court erred in relying on dying declaration (Ex. P- 8) recorded by Executive magistrate Jitendra Singh Pawar (P. W. 6) because he did not obtain certificate of fitness of deceased before recording dying declaration and after its completion. The learned Counsel has also submitted that certificate of fitness (Ex. P-9) was given by Dr. Anoop Sharma (P. W. 14) vide Ex. P-9 on 3-10-1999 in the evening at 6. 15 P. M. whereas dying declaration (Ex. P-8) was shown to be recorded on 3-10-1999 at 10. 20 A. M. in the hospital. Therefore, the document ex. P-9 regarding condition of the deceased has no concern with the dying declaration (Ex. P-8 ). The learned Counsel also vehementally argued that second dying declaration (Ex. P-20) recorded by Subhash Chandra, ASI (P. W. 12) could not be relied upon by the Trial Court because the same was recorded by police. It has also been submitted that burden lies on the prosecution to prove its case beyond all reasonable doubt and because of the falsity of defence, prosecution cannot get any benefit. The learned Counsel has placed reliance on supreme Court judgment rendered in case of Sheikh Meheboob @ Hetak and others Vs. State of Maharashtra [ air 2005 SCW 1595 ] and Division Bench judgment passed by Delhi High Court in case of Dr. Mahendra Singh Dhaiya Vs. State (CBI) [2003 Cr. LJ 1908]. ( 5. ) PER contra, the learned G. A. Shri Manoj Dwivedi, appearing for the state has submitted that dying declaration (Ex. P-8) recorded by Executive magistrate (P. W. 6) cannot be discarded only on the ground that on the same paper, certificate of fitness given by Doctor is not available. He further put forth that there is no rule of thumb for not relying the dying declaration recorded by police. P-8) recorded by Executive magistrate (P. W. 6) cannot be discarded only on the ground that on the same paper, certificate of fitness given by Doctor is not available. He further put forth that there is no rule of thumb for not relying the dying declaration recorded by police. The learned Prosecutor has submitted that both the dying declarations were duly corroborated by the statements of prosecutions witnesses Savitribai (P. W. 7) and Premlal (P. W. 8) before whom deceased disclosed in the hospital that she was ablazed by the appellant. ( 6. ) HAVING heard the learned Counsel for the parties and on perusal of the entire record, it emerged that the learned Trial Court has placed reliance on dying declaration (Ex. P-8) recorded by Executive Magistrate Jitendra Singh pawar (P. W. 6) and statement (Ex. P-20) recorded by Investigating Officer subhash Chandra (P. W. 12) during the course of investigation and sought corroboration to both the written dying declarations from the oral dying declaration made by the deceased before her mother Savitribai (P. W. 7) and maternal grand father Premlal (P. W. 8 ). The learned Trial Court also placed reliance on evidence of seizure of various articles from the place of incident though seizure memo (Ex. P-18) and falsity of defence of alibi. ( 7. ) WE have perused the dying declaration (Ex. P-8) recorded by executive Magistrate Jitendra Singh Pawar (P. W. 6) recorded on 3-10-1999 at 10. 20 A. M. In this dying declaration, signature of the deceased Laxmibai are available and same signature are also available on statement (Ex. P-20 ). The deceased made statement before the Executive Magistrate that in the intervening night of 2nd and 3rd October, 1999 between 2 - 2. 30 A. M. the appellant poured kerosene oil on her and lit fire by match stick. She was also beaten because she went to the house of her mother-in-law for Laxmi Poojan. It has also mentioned in the dying declaration that she ran out of the house and fire was extinguished by her brother-in-law by throwing water and she was brought to the hospital by brother-in-laws (Devar and Jeth) and other relations. She also deposed that after the marriage the appellant was oftenly beating her. It has also mentioned in the dying declaration that she ran out of the house and fire was extinguished by her brother-in-law by throwing water and she was brought to the hospital by brother-in-laws (Devar and Jeth) and other relations. She also deposed that after the marriage the appellant was oftenly beating her. This is true that on this dying declaration Executive Magistrate did not obtain certificate of fitness from Doctor but Executive Magistrate has specifically stated in Paragraph six of the cross-examination that she was conscious and in a condition to speak. In cross-examination, document (Ex. P-9) was shown to this witness by the defence Counsel on which the certificate of fitness was given by doctor on 3-10-1999 in the evening at 6. 15 P. M. This document is a separate document and Doctor gave opinion on request made by the police about fitness of the deceased for her statement. We are not able to understand that as to how this document was got proved by this witness who is not the scribe of this document and his signature is also not available on the same. On careful perusal of dying declaration (Ex. P-8) as well as the statement of Executive Magistrate jitendra Singh Pawar (P. W. 6) who has deposed that the deceased was conscious and in a position to speak, we find no reason to discard his testimony. In cross-examination nothing has come to raise finger at him about his impartiality. [see AIR 2003 SC 4466 , Sohanlal @ Sohansingh and others Vs. State of Punjab]. The defence suggestion was denied by this witness about false preparation of dying declaration (Ex. P-8) and certificate of fitness (Ex. P-9) mixing with the investigating Officer. No suggestion was given to this witness or material available on record that he was in any way related or having interest in deceased and with her paternal relations. On this dying declaration signature of the deceased is also available and it is not the defence case that deceased was illiterate woman and therefore, could not sign on dying declaration (Ex. P-8 ). On this dying declaration signature of the deceased is also available and it is not the defence case that deceased was illiterate woman and therefore, could not sign on dying declaration (Ex. P-8 ). In case of Sohanlal (supra), Supreme Court has held that "in absence of certificate of fitness of the deceased given by Doctor, if Magistrate testifying that deponent was in fit state of mind at the time of making the statement and there were no circumstance brought on record to suspect his bonafide, such dying declaration can be relied upon". ( 8. ) THE statement (Ex. P-20) was recorded by Investigating Officer subhashchandra, ASI (P. W. 12) during the course of investigation on 4-10- 1999 and same is also bearing signature of deceased. The defence suggestion has been denied by this witness regarding signature of Laxmibai but defence has not taken any step to prove by preponderance of probability that the signatures of the deceased as said by the prosecution on Exs. P-8 and P-20 were not her signature. In statement (Ex. P-20) also the deceased made the same statement that she was set on fire by her husband in the night after pouring kerosene oil. [see AIR 2003 sc 1074 (State of Karnataka Vs. Shariff)]. In this case, Supreme Court has ruled that "dying declaration recorded by police personnel cannot be discarded on that ground alone. There is no requirement of law that dying declaration must necessarily be made to Magistrate". In the instant case Ex. P-20 recorded by the police bearing signature of the deceased and there is no material on record to doubt the bonafide of the scribe of Ex. P-20, statement of deceased. ( 9. ) TO corroborate both these documents the statements of mother of the deceased Savitribai (P. W. 7) and Premlal (P. W. 8) are also available before whom she disclosed in the hospital that appellant ablazed her after pouring kerosene oil on her. She also disclosed the reason, Le. , she went to her mother-in-law for Pooja because of which appellant quarreled with her and ablazed her. She also disclosed before them that she was rescued by her brother-in-law. [see (2001) 10 SCC 63 (Mesu Dhondiba Vidhate Vs. State of maharashtra), AIR 2002 SC 299 (Meharban Singh and others Vs. State of M. P.)]. , she went to her mother-in-law for Pooja because of which appellant quarreled with her and ablazed her. She also disclosed before them that she was rescued by her brother-in-law. [see (2001) 10 SCC 63 (Mesu Dhondiba Vidhate Vs. State of maharashtra), AIR 2002 SC 299 (Meharban Singh and others Vs. State of M. P.)]. It is the prosecution case that appellant Narayansingh was residing separate with his wife from his mother and two brothers. ( 10. ) THE prosecution has also examined Lakhansingh (P. W. 2), brother-in-law of the deceased who extinguished the fire and while doing so sustained injury on his hands. He has turned hostile but in examination-in-chief he deposed specifically that in the night at about 3 A. M. he overheard the cry of his sister- in-law (bhabhi) on which he and his mother Kesharbai (P. W. 1) came out from their room and saw that deceased was coming out from her room in burning condition. He extinguished the fire and thereafter he, his mother and another elder brother Amarchand took her to the hospital. He also deposed that he did not know as to how deceased sustained burn injuries. In cross-examination by the prosecution he denied contents of the case diary statement (Ex. P-2) about disclosure of the deceased before him that she was alighted by her husband/appellant after pouring kerosene oil and in cross-examination by defence he stated that appellant went to attend Kavi sammelan and reached in the hospital in the morning at 6. 00 A. M. Amarchand (P. W. 3) is the another brother of the appellant and he and mother-in-law kesharbai (P. W. 1) also given the same statement. Both were declared hostile by the prosecution and confronted with their case diary statement. All the three witnesses did not speak as to how deceased sustained burn and they did not ask her for the same. Obviously they favoured the appellant being his mother and brothers. All the three witnesses have nowhere stated that deceased sustained burn injuries while preparing tea accidentally whereas Dr. Pankaj Gaur (P. W. 4)who attended the deceased first in time in M. Y. Hospital on 3-10-1999 at 4 A. M. has deposed that deceased Laxmibai was brought by her brother-in-law (Jeth)and mother-in-law Kesarbai (P. W. 1 ). The history of patient was that she sustained burn injury accidentally while preparing tea. Pankaj Gaur (P. W. 4)who attended the deceased first in time in M. Y. Hospital on 3-10-1999 at 4 A. M. has deposed that deceased Laxmibai was brought by her brother-in-law (Jeth)and mother-in-law Kesarbai (P. W. 1 ). The history of patient was that she sustained burn injury accidentally while preparing tea. This witness mentioned this fact specifically in MLC report (Ex. P-4 ). He also found 52% burn and in fully conscious condition (well oriented) but in the MLC he nowhere mentioned that he" asked the deceased about sustaining burn injury and sustaining burn injury accidentally while preparing tea has not been deposed by Kesarbai (P. W. 1) Lakhansingh (P. W. 2) and Amarchand (P. W. 3), mother-in-law and brother-in-laws of the deceased respectively. In cross- examination, this witness has stated that history of the patient was written on MLC (Ex. P-4) as disclosed to him by relations of the deceased and he also confirmed the same from deceased. The statement of this witness about confirmation by deceased does not appeared to be correct otherwise he would have not failed to mention the same in MLC report (Ex. P-4) and also could have stated this fact in examination-in-chief. ( 11. ) DR. Poornima Shrivastava (P. W. 5) examined Lakhansingh (P. W. 2), brother-in-law of the deceased on 6-10-1999 and found some burn injuries on his right palm. She proved his medical report (Ex. P-7 ). There is no dispute about sustaining burn injury by witness Lakhansingh while saving the deceased witnesses. Kesarbai (P. W. 1), Lakhansingh (P. W. 2) and Amarchand (P. W. 3), mother and brothers of appellant could have lodged the report in the police station. They were having their another brother Ganpat in their house who also accompanied them to take the deceased to hospital. There was police chowky in the M. Y. Hospital and according to the FIR (Ex. P-21) distance of police station was only half kilometer. Out of these three major male members any one could have gone and lodged the report if really deceased sustained injury while preparing tea and appellant was not in the house but they did not do so and in court also kept silent as to how deceased sustained injury. They have also not deposed that they gave information to Dr. Pankaj Gaur (P. W. 4) that deceased sustained injury by preparing tea. They have also not deposed that they gave information to Dr. Pankaj Gaur (P. W. 4) that deceased sustained injury by preparing tea. Silence of these witnesses speaks volumes about falsity of deceased sustaining burn accidentally. ( 12. ) THE learned Trial Court has considered this aspect in its judgment in detail and rightly held that in a dead hour of night, i. e. ,2- 2. 30 A. M. in the night normally there could not be any occasion for preparing tea and if appellant was not in the house he could have been intimated immediately by his brothers and could have reached at the house or hospital immediately. For the first time all the three witnesses deposed in cross-examination by defence Counsel that appellant was not in the house and went to attend Kavi Sammelan. This story appears to be a cooked up story just to save the appellant and to support his plea of alibi. But strangely enough the appellant himself in his accused statement recorded under Section 313, Cr. PC did not speak about his absence in the house and went to attend Kavi Sammelan along with his friends. [see (2002) 7 SCC 157 (Mani Kumar Thapa Vs. State of Sikkim)]. In accused statement, in reply to almost all the questions he answered "he did not know" ( ). In case of Mani kumar Thapa (supra), it is observed by the Supreme Court that "failure of accused to explain any inculpating circumstance established by the prosecution against him, would form an additional link in the chain of circumstances". In the case in hand, appellant has not explained the incriminating circumstance in his statement recorded under Section 313 of Cr. PC. Therefore, this would be an additional link to corroborate aforesaid dying declarations of the deceased. ( 13. ) INVESTIGATING Officer Jorsingh Bhadoria (P. W. 11) has testified that he arrested the appellant on 5-10-1999 vide arrest memo (Ex. P-19) and in cross-examination, Paragraph 13, the defence got proved the seizure memo (Ex. P-18) about seizure of burn pieces of sari, plastic container of kerosene oil containing some quantity of kerosene, match box from inside the room of appellant. He admitted that seizure memo was written by Constable in his presence and he signed on the same. We do not find any infirmity in this process of preparation of seizure memo. P-18) about seizure of burn pieces of sari, plastic container of kerosene oil containing some quantity of kerosene, match box from inside the room of appellant. He admitted that seizure memo was written by Constable in his presence and he signed on the same. We do not find any infirmity in this process of preparation of seizure memo. In Paragraph 29, this witness has denied the defence suggestion about presence of the appellant in Kavi Sammelan and he was also there on duty and deceased disclosed before him that she sustained burn injuries while preparing tea. This story appears to be pulpably false because on the scene of occurrence, i. e. , the room of the appellant and the deceased stove, any utensil, tea leaves, sugar etc. were not found and seized. If deceased sustained burn injuries while preparing tea she could have disclosed before her mother-in-law (P. W. 1) and brother-in-laws (P. W. 2 and P. W. 3) but they have not stated so in their Court statements. Looking to the medical evidence and presence of 52-60% burn injuries this story does not appeared to be true. ( 14. ) DR. Mahesh Kumar Singh (P. W. 3) who attended the deceased during the course of treatment proved the bed head ticket (Ex. P-23 ). He found 62% burn injuries and burn were present on chest as well as back portion of the deceased. He also proved admission ticket (Ex. P-24 ). In cross-examination, paragraph four, he deposed that at the time of first examination or admission if patient could not speak then they interrogate his companion/relations and record history. When she was brought in the hospital she was not in a position to speak but when she was in a fit condition to speak he could not say. According to this witness during admission period deceased was speaking and smell of kerosene was coming from her body. These facts he has deposed in cross-examination. ( 15. ) ANOTHER Doctor Dr. Anoop Sharma (P. W. 14) who has also attended the deceased and wrote letter (Ex. P-6) to CMO for making arrangement to record dying declaration of deceased and he proved Ex. P-9 about fitness of the deceased for giving dying declaration. This certificate was given on a separate paper on 3-10-1999 in the evening at 6. ) ANOTHER Doctor Dr. Anoop Sharma (P. W. 14) who has also attended the deceased and wrote letter (Ex. P-6) to CMO for making arrangement to record dying declaration of deceased and he proved Ex. P-9 about fitness of the deceased for giving dying declaration. This certificate was given on a separate paper on 3-10-1999 in the evening at 6. 15 p. m. This witness has also deposed in cross-examination that when deceased was brought in the hospital on 3-10-1999 she was in a condition to speak and after 3-10-1999 during the course of treatment, her condition started deteriorated. In Para nine he has again deposed that in burn cases patient could not remain in stable condition and she suffered good and bad condition several times in a day. He denied the defence suggestion that he did not give opinion about condition of the fitness of the patient vide Ex. P-9 on 3-10-1999. ( 16. ) DR. N. M. Unda (P. W. 16) has proved post-mortem report of the deceased vide Ex. P-12 and in his opinion deceased was suffering from 70-75% burn injuries and deceased died because of respiratory failure and heart due to burn injuries and complications arose because of burn. ( 17. ) THE judgment rendered by Supreme Court in case of Sheikh mehboob (supra), is not helpful to the appellant because in this case deceased gave contradictory statement/dying declaration in time to time. The contents of the dying declaration was suggestive of self immolation because the accused persons were demanding interest and beating him and in medical record at one place history of accidental burn and at another place history of self inflicted burns were recorded. In the case in hand the deceased gave consistent statements about pouring of kerosene oil on her by her husband/appellant, thereafter lit fire by match stick. In first dying declaration (Ex. P-8) recorded by executive Magistrate, in second statement recorded by Investigating Officer (Ex. P-20) and disclosure before her mother Savitribai (P. W. 7) and maternal grand father Premlal (P. W. 8) are consistent statements of the deceased. So far as first MLC report proved by Dr. Pankaj Gaur (P. W. 4) in which the history of patient was recorded by him as disclosed by mother-in-law Kesarbai (P. W. 1)and Ganpat, brother of appellant, this was not recorded on disclosure by deceased. Therefore, the mention of the fact in Ex. So far as first MLC report proved by Dr. Pankaj Gaur (P. W. 4) in which the history of patient was recorded by him as disclosed by mother-in-law Kesarbai (P. W. 1)and Ganpat, brother of appellant, this was not recorded on disclosure by deceased. Therefore, the mention of the fact in Ex. P-4 regarding history of the patient that she sustained burn injuries accidentally while preparing tea is of no consequence and this fact has not been supported and deposed by Kesarbai (P. W. 1), Lakhansingh (P. W. 2) and Amarchand (P. W. 3), mother and brothers of the appellant respectively. ( 18. ) SO far as the plea of alibi is concerned, the appellant has failed to establish his plea. He himself has not stated so in his accused statement and P. W. 1 to P. W. 3, relations of the appellant, hostile witnesses have deposed about absence of the appellant for the first time in Court that too in cross-examination by the learned Counsel for the appellant. Same is the position with defence witness Amit Khandelwal (D. W. 1), Pravin Jain (D. W. 2) and Ram Swaroop (D. W. 3 ). These witnesses have disclosed about presence of the appellant with them in Kavi Sammelan in the night of the incident. They have not stated that after knowing the involvement of the appellant for the charge of murder of his wife they reported to police or any higher authority regarding presence of the appellant with them in Kavi Sammelan. Such kind of oral evidence of near and dear of the accused would not be sufficient to establish the plea of alibi, anybody can have 2-3 persons to speak in his favour for plea of alibi. For establishing this plea a very strong, cogent and reliable evidence is required and no such evidence has been adduced by the appellant. He himself has not stated so in his accused statement. [see (2002) 1 SCC 702 (Subhash Chand Vs. State of Rajasthan), (2003) 9 SCC 86 (Babudas Vs. State of M. P.)]. In the case of Babudas (supra), it is held by the Supreme Court that "plea of false alibi would be linked in the chain of circumstance but on the basis of sole link or the sole circumstances conviction could not be based". State of Rajasthan), (2003) 9 SCC 86 (Babudas Vs. State of M. P.)]. In the case of Babudas (supra), it is held by the Supreme Court that "plea of false alibi would be linked in the chain of circumstance but on the basis of sole link or the sole circumstances conviction could not be based". In the case in hand apart from false plea of alibi two written dying declarations and oral dying declaration before two witnesses with that the false plea of alibi is an additional circumstance against the appellant. ( 19. ) THE another judgment relied upon by the learned Counsel for appellant passed in case of Dr. Mahendrasingh (supra), on the point that "prosecution has to stand on its on legs and cannot take advantage or undue advantage of the defence put forth by the accused even if the same was found to be false or improper". There is no dispute about this legal position but in the present case learned Trial Court has not given any benefit to the prosecution regarding weakness of the defence case. For proving defence of alibi burden is on the appellant and if he failed to discharge the same then the inference would be that he was present on the scene of occurrence as stated by the prosecution. Drawing such inference or conclusion would not mean that the benefit of weakness of falsity of the defence is given to the prosecution, the law is well settled on this point. ( 20. ) IN view of the foregoing discussion, the appeal of the appellant fails and is hereby dismissed. Criminal Appeal dismissed.