Judgment S. T. KHARCHE, J. ( 1 ) THIS criminal appeal takes an exception to the judgment and order of conviction dated 2-5-2001 passed by the learned Additional Sessions Judge in Sessions case No. 221/99, whereby the appellant- accused has been convicted for the offence punishable under section 302 of the Indian Penal code and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 500/ -, in default to undergo further rigorous imprisonment for six months. ( 2 ) THE case of prosecution can briefly be stated as under : (A) Deceased Mangala is wife of the accused and their marriage was solemnized just before 6 or 7 months prior to the date of offence. On 8-6-1999 at about 6 O'clock in the evening the deceased asked her husband to have his meals and at that time he told that he would take the meal after consuming liquor and therefore the quarrel ensued in between them. Her husband picked up a stick and delivered its blows on her person and then poured kerosene from the lamp on her person and threw burning matchstick due to which she was in flames and sustained 72% burn injuries. The accused who was near her, got frightened and, therefore, poured water from a container on her person and tried to extinguish the fire. She was taken to the General Hospital, Akola and the Special Judicial Magistrate Sudha bhosale (PW 6) was summoned by the Medical officer to record her dying declaration. Accordingly the Special Judicial Magistrate visited the hospital and recorded the dying declaration (Exh. 29) at about 10. 25 p. m. after satisfying herself that Mangala was in a fit condition to give statement who was examined by Dr. Vijay Choudhari (PW 7) who issued fitness certificates on the dying declaration itself. (B) Police Inspector Ashok Kankale (PW 8) registered the offence on the basis of the said dying declaration initially for the offence punishable under section 307 of the Indian Penal code bearing Crime No. 79/99 at Police Station, murtizapur. (C) Saraswatibai (PW 1), Dilip (PW 3), and Mathura (PW 4), the mother, brother and aunt of deceased Mangala respectively had visited the hospital and deceased Mangala made oral dying declaration to them to the effect that her husband had poured kerosene on her person and set her on fire. (C) Saraswatibai (PW 1), Dilip (PW 3), and Mathura (PW 4), the mother, brother and aunt of deceased Mangala respectively had visited the hospital and deceased Mangala made oral dying declaration to them to the effect that her husband had poured kerosene on her person and set her on fire. (D) Mangala succumbed to the burn injuries on 17-6-99 at about 2. 15 p. m. Dr. Vrishali Tale (PW 5) effected autopsy on the dead body of Mangala and opined that Mangala died due to septicemic shock due to severe burn and accordingly she issued postmortem report (Exh. 26 ). The accused was arrested and his clothes including shirt was seized and was forwarded to the Chemical Analyser for analysis. The report of Chemical Analyser reveal that residues of kerosene were found on the shirt of the accused as well as in the articles which were seized from the spot of incident at the time of preparing spot panchanama. On completion of the investigation, charge sheet was filed in the Court of the learned Judicial magistrate, First Class. (E) On committal of the case to the court of Sessions, the learned Additional sessions Judge framed and explained the charge to the accused to which he pleaded not guilty and, therefore, the trial proceed with. The prosecution, in support of its case has examined as many as eight witnesses and relied on oral as well as written dying declarations. The defence of the accused is that of total denial. The learned Additional Sessions Judge on appreciation of evidence has recorded the findings that Mangala died as a result of homicidal death and that it is her husband and none else who had set her on fire and did commit her murder. Consistent with these findings, the learned Judge convicted the accused and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal. ( 3 ) M:. Patwardhan, the learned counsel for the appellant-accused contended that the entire ct. se of prosecution is based on the so called dying declaration (Exh. 29) is false. The prosecution did not examine any independent witness including neighbours who had an opportunity to witness the incident. He contended that the incident occurred inside the house of the accused at village Rajanda which is situated at the distance of 15 Kms. se of prosecution is based on the so called dying declaration (Exh. 29) is false. The prosecution did not examine any independent witness including neighbours who had an opportunity to witness the incident. He contended that the incident occurred inside the house of the accused at village Rajanda which is situated at the distance of 15 Kms. away from Akola and the first information report was lodged on the next day morning at about 10. 30 a. m. and, therefore, there was inordinate delay in the registration of the offence. He contended that the entire investigation is tainted and no reliance could be placed on the dying declaration which was recorded in the night at about 10. 30 p. m. especially when the Medical officer Dr. Vijay Choudhari (PW 7) did not record the history of the case on the case papers. He contended that Mangala was not in a fit condition to give her statement and the fitness certificates issued by Dr. Vijay choudhari cannot be relied on to show that mangala was in a fit condition to give her statement. The prosecution has only examined the interested witnesses namely; Saraswatibai, dilip and Mathura who are close relatives of the deceased and, therefore, no reliance could be placed on the so called oral dying declaration made by the deceased to them in the hospital. In support of these submissions he relied on the decisions of Division Bench of this Court in the case of Bhagirath Bhaurao Kanade vs. The State of Maharashtra - 1996 (4) crimes 65 : [1997 ALL MR (Cri) 362] and rajendra Narayan Mahajan Vs. State of maharashtra - 2004 ALL MR (Cri) 1586. ( 4 ) THE learned counsel for the appellant-accused contended that the prosecution did not attribute any motive to the accused and moreover, the accused has given explanation while answering question No. 28 in his statement recorded under section 313 of the Code of Criminal Procedure that on the day of occurrence, Mangala wanted him to accompany her to her parents' house but he refused as he did not have money and, therefore, she got annoyed. He then went out of the house and when he returned back, he found that there was a crowd in front of his house and therefore, he extinguished the fire and took Mangala to the hospital and that his parents in laws wanted him to stay at their place only. The learned counsel for the appellant- accused contended that the incident occurred on a spur of moment and in a fit of anger, the accused-husband had poured kerosene on the person of his wife Mangala and set her on fire. But, his subsequent conduct would clearly show that it is he, who had taken her to the hospital and in such circumstances, the offence would be squarely covered by section 304-2 of the Indian Penal Code. The learned counsel for the appellant-accused thus, in the alternative contended that in such circumstances, the sentence may be reduced to already undergone. ( 5 ) MR. Ahirkar, the learned additional Public Prosecutor fully supports the impugned judgment and order of conviction recorded by the learned Additional Sessions judge and contended that the dying declaration made by the deceased before three witnesses namely; Sarswatibai, who is mother, dilip who is the brother and Mathura, the aunt of deceased Mangala is quite consistent with the written dying declaration (Exh. 29) recorded by the Special Judicial Magistrate Sudha bhosale (PW 6) after satisfying herself that mangala was in a fit condition to give her statement. He contended that Dr. Vijay choudhari (PW 7) had examined Mangala before recording of the dying declaration and he was present throughout the recording of the dying declaration. He had made endorsement on the dying declaration in the beginning as well as after the recording was complete, at the foot of the dying declaration to the effect that mangala was in fit condition to give her dying declaration. ( 6 ) HE contended that the dying declaration recorded by the Special Judicial magistrate was treated as first information report on the basis of which Police Inspector ashok Kankale (PW 8) registered the offence initially under section 307 of the Indian Penal code which was converted into section 302 of the Indian Penal Code after Mangala succumbed to the burn injuries on 17-6-99. He contended that there was no delay in registration of the first information report at Police Station, murtizapur and the written dying declaration has been corroborated in material particulars by the oral dying declarations made by the deceased and since there was no inconsistency in any of the dying declarations, the learned additional Sessions Judge was perfectly justified in recording conviction on the basis of said dying declarations and no fault could be found in the impugned judgment and order of conviction. He contended that in such circumstances, there is no merit in the appeal and the same may be dismissed. ( 7 ) WE have given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that Mangala had sustained 72% burn injuries on 8-6-99 in between 6. 00 to 9. 05 p. m. and she was admitted at General Hospital, Akola for the purpose of medical treatment. It is also not disputed that Mangala succumbed to the burn injuries on 17-6-99 at about 2-15 p. m at general Hospital, Akola. Dr. Vrishali Tale (PW 5) had effected autopsy on the dead body of mangala on 17-6-99 in between 6. 00 p. m. to 6. 15 p. m. and she found the following injuries mentioned in column No. 17 of the post mortem report (Exh. 26 ). ( 8 ) THE testimony of Dr. Vrishali Tale would indicate that Mangala had sustained 72% burn injuries all over her body which were anti mortem injuries and the probable cause of death was due to septicemic shock due to severe burn injuries. ( 9 ) THE crucial question that requires consideration is, whether the prosecution has succeeded in establishing the complicity of the appellant-accused in the commission of the present crime. The conviction of the accused is based mainly on the oral as well as written dying declaration. The sanctity behind dying declaration was expressed long before it was sanctioned by judicial opinion. The eminent poet Shakespeare has put it is the following words : "have I not hideous death within my view retaining but a quantity of life, which bleeds away even as form of wax, resolve th from his figure against the fire, what in the world should make me now deceive since I must lose the use of all deceit? The eminent poet Shakespeare has put it is the following words : "have I not hideous death within my view retaining but a quantity of life, which bleeds away even as form of wax, resolve th from his figure against the fire, what in the world should make me now deceive since I must lose the use of all deceit? why should I then be false since it is true that I must die here and live hence by truth. Again oh, but they say that tongues of dying man enforce attention like deep harmony for they breath truth that breath their words in pain. " ( 10 ) THE principle on which dying declaration is admitted, is indicated by the maxim nemo moriturus prossumitur mentiri - a man will not meet his Maker with a lie in his mouth. When a man is dying, in the eyes of law, the grave position in which he is placed, affords sufficient ground for the veracity of what he states and therefore law, in such circumstances, dispenses with the normal tests of oath and cross-examination. ( 11 ) NOW, so far as the law in relation to the evidentiary value of written dying declaration is concerned, it has almost been settled by the Constitution Bench of the Hon'ble supreme Court in the case of Laxman Vs. State of Maharashtra - (2002)5 Supreme court Cases 710: [2002 ALL MR (Cri) 2259 (S. C.)] wherein it has been held in paras 3 and 5, that; "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. 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. 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. 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 on the decision of this Court in Harjit kaur Vs. State of Punjab 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 to hesitation in coming to the conclusion that the observations of this Court in Paparambaka Rosamma Vs. State of A. P. , (at 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. "has been too broadly stated and is not the correct enunciation of law. It is indeed a hyper technical view that 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 whereafter he recorded the dying declaration. Therefore, the judgment of this Court in Paparambaka rosamma Vs. State of A. P. must be held to be not correctly decided and we affirm the law laid down by this Court in Koli Chunilal Savji vs. State of Gujrat. ( 12 ) THE testimony of the Special judicial Magistrate Smt. Sudha Bhosale would clearly reveal that she had recorded the dying declaration after she had visited the General hospital, Akola at 10. 25 p. m. It is necessary to reproduce the said dying declaration which reads as under: "information was received on phone from Police Constable Shri. Dipak, b. No. 2175, about recording Dying declaration, this day 8-6-99 at 9. 30 O'clock at night. The patient is admitted in Burns ward of the Government Hospital. Sd/- S. Bhosale, special Judicial Magistrate, 10. 25 p. m. , Date 8-6-1999 certificate GIVENBYTHE MEDICAL officer attended along with SJ. M. examined the patient. She is found conscious, oriented fit for giving D. D. Sd/- Dr. Choudhari medical Officer, general Hospital, Akola date 8-6-1999, 10. 25 p. m. Recording of Dying Declaration was commenced at 10. 25 O'clock. What is your name?: Sou. Mangala Vasanta gawali what is your age? : 20 Years where do you : At and Post Rajanda, reside? : Police Station Barshi takali. Do you know that : i am Special Judicial magistrate ? : Yes. What were you doing this day? Who was near by you ? : after cooking food at 6. 00 O'clock in the evening, I asked (my) husband to have his meals. At that time, my husband was near me. He told that he would come after consuming liquor. Thereafter quarrel took place between us. Who admitted you in the hospital? : my mother-in-law admitted (me) in the hospital. How did you sustain burns ? Tell it orally. Ans. 00 O'clock in the evening, I asked (my) husband to have his meals. At that time, my husband was near me. He told that he would come after consuming liquor. Thereafter quarrel took place between us. Who admitted you in the hospital? : my mother-in-law admitted (me) in the hospital. How did you sustain burns ? Tell it orally. Ans. After quarreling, my husband named vasanta delivered two stick blows on me. Thereafter he poured Kerosene from the lamp on my person and threw a burning matchstick. The yellow coloured polyster saree which was on my person caught fire and burnt completely. He got frightened and poured water from ghagar (a round pot for holding water) on my person. I was married before 6-7 months. I am two months pregnant. On hearing my shouts, people from the village gathered. I was brought in the hospital. My Dying Declaration was read over to me and it is true. Signature of the patient: (Left Thumb Impression of Sou. Mangala) sd/- S. Bhosale 10. 40 p. m. CERTIFICATE GIVE BY THE MEDICAL officer patient is conscious and oriented while recording D. D. By S. J. M. in my presence. Sd/- Dr. Choudhari medical Officer, general Hospital, Akola. 10. 40 p. m. CERTIFICATE (1) As per the certificate given by the Medical officer, the patient was fully conscious. (2) There was nobody nearby at the time of recording the Dying Declaration. (3) The Medical Officer was present at the time of recording the Dying Declaration. (4) She willingly gave the Dying Declaration. Sd/- S. Bhosale, special Judicial Magistrate, p. m. " ( 13 ) THE testimony of Dr. Sudha bhosale would reveal that she had satisfied that mangala was in a fit condition to give her dying declaration and besides Dr. Vijay Choudhari has also put his endorsements on the dying declaration regarding the state of mind of the deceased. He has categorically stated that he had examined the patient as per the request of special Judicial Magistrate and gave certificate that Mangala is conscious, oriented and fit for giving dying declaration at 10. 25 p. m. vide exh. 32 and thereafter the dying declaration was recorded by the Special Judicial Magistrate. He has categorically stated that he had examined the patient as per the request of special Judicial Magistrate and gave certificate that Mangala is conscious, oriented and fit for giving dying declaration at 10. 25 p. m. vide exh. 32 and thereafter the dying declaration was recorded by the Special Judicial Magistrate. He himself was present throughout and on completion of recording of the dying declaration, he again issued certificate in his own handwriting which is to the effect that the patient was again examined and was found that she was conscious and oriented while recording the dying declaration. The testimony of the Special Judicial Magistrate would indicate that nobody was present at the time of recording dying declaration except the Medical Officer and the dying declaration given by Mangala was voluntary and that her left had thumb impression was also obtained after she admitted that the dying declaration was read over to her and the contents of the same were correct. Nothing favourable to the accused could be brought on record in the cross-examination of the Special Judicial Magistrate or the Medical officer Dr. Vijay Choudhari. ( 14 ) ON re-appreciation of the evidence in relation to the said dying declaration, it appears that the basic requirements have been clearly fulfilled, namely (i) examination of the patient by the doctor before recording cf the statement and a certificate by the doctor that the patient was in a sound mental state to give statement; (ii) presence cf doctor near the patient during recording of the statement; (iii) relations of the patient were not in the vicinity and were removed from the room wherein ihe statement of the patieni was recorded which leads to the legitimate inference that the statement made by tf> e deceased is voluntary and free from any influence or tutoring; (iv) the dying declaration was read over to Mangala and she admitted the same to be correctly recorded and in token of the same her thumb impression was also obtained; and (v) that, mangala had in unequivocal and clear terms stated that her husband had poured kerosene on her person and set her on fire. The written dying declaration recorded by the Special judicial Magistrate has been corroborated in material particulars by the oral dying declarations made by the deceased to her mother Saraswatibai (PW 1), brother Dilip (PW 3) and her aunt Mathura (PW 4 ). The written dying declaration recorded by the Special judicial Magistrate has been corroborated in material particulars by the oral dying declarations made by the deceased to her mother Saraswatibai (PW 1), brother Dilip (PW 3) and her aunt Mathura (PW 4 ). There is absolutely no inconsistency in any of the dying declarations and there is no reason as to why the written dying declaration, recorded by the special Judicial Magistrate at the earliest point of time, should not be accepted as trustworthy. ( 15 ) IN Bhagirath Kanade's case (cited supra), on which reliance is placed by the learned counsel for the appellant-accused, the deceased had sustained 98% burns and the dying declaration was recorded by the magistrate to the effect that the appellant had poured petrol on the body of the deceased and set him on fire. On admission of the deceased in the hospital, the history of the victim was recorded in Medico Register which stated that it was accidental bums inflicted by the patient. The doctor who had examined the victim, at the first instance and recorded that entry was, not examined and it was held on these facts that benefit of conflicting dying declarations must go to accused and the appellant was entitled to benefit of doubt and was acquitted. This authority has no bearing on the facts and circumstances of the present case and, therefore, is of no assistance to the appellant- accused. In the present case there is no conflict between the dying declaration recorded by the magistrate as well as oral dying declarations made by the deceased before her mother, brother and the aunt. ( 16 ) THE reliance placed by the learned counsel for the appellant-accused on the decision of this Court in the case of Rajendra narayan Mahajan (cited supra) is miscencsiv^d though there cannot be a dispute that if the dying declaration is being examined as corroboration to other evidence, even preponderance of probability may weigh, but when the dying declaration is the soie evidence in support of the prosecution case, it was to be scrutinised minutely and it must inspire confidence to rely upon it. In the present case, on appreciation of the evidence, we do not find that there is any preponderance of probability which may weigh in favour of the accused and on minute and close scrutiny of the dying declarations, we are satisfied that there is no material on record from which it could be said that there are conflicting dying declarations or that there is any doubt regarding presence of the accused on the spot of incident. ( 17 ) THERE is absolutely no delay in lodging the first information report. In fact, this is a case wherein the dying declaration (Exh. 29) was treated as first information report on the basis of which Police Sub-Inspector ashok Kankale had registered: ihe offence under section 307 of the Indian Penal Code at Police station, Murtizapur on the next day in the morning and thereafter he took up the investigation of this crime. Therefore, there is no reason for suspicion in the investigation, which was carried out promptly though there is some delay in recording the statement of mathura (PW 4) whose statement was recorded on 24-7-99. The fact remains that the statement of Saraswatib. ai and Dilip ,was recorded by PSI Ashok Kankale. on the next day, i. e. on 9r6-99 and there are no material omissions or contradictions brought on record in the testimony of these witnesses to show that the deceased was. not in a fit. condition to make the oral dying declaration before them and that deceased did not make oral dying declaration to them in the hospital. ( 18 ) THE defence of the accused is that his parents in law were insisting that he should live with them and lie had refused to accompany his wife to her parents house because fie had no money. The accused while answering question No. 28 at the time of recording his statement under section 313 of the Code of criminal Procedure has stated that quarrel had ensued between him and his wife, he had gone out of the house and when he returned, he found that the crowd had gathered in front on his house and thereafter he tried to extinguish the fire and took his wife to the General Hospital, akola. ( 19 ) IT appears that there is no substance in the defence of the accused because his shirt was seized by PSI Kankale after his arrest and it was forwarded to the chemical Analyser along with articles which were found on the spot of incident for the purpose of chemical analysis and the report of chemical Analyser indicates that the earth mixed with kerosene, partly burnt clothes of the deceased, etc. were soiled with kerosene and kerosene residues were positive in these articles. This finding of the Chemical Analyser negatives the defence of the appellant-accused that he was not present when his wife was set on fire. ( 20 ) THOUGH the appellant-accused stated in his statement recorded under section 313 of the Code of Criminal Procedure that he took Mangala to the hospital, the dying declaration (Exh. 29) reveals that the mother of the accused had admitted Mangala in the hospital. There is no material on record from which it could be said that the accused had admitted his wife to the General Hospital, Akola after she had sustained burn injuries. ( 21 ) THOUGH the motive has not been attributed to the accused for commission of the murder of his 'wife, it cannot be said that the entire incident had taken place at the spur of moment ahd in such a situation we are unable to accept the contention of the learned counsel for the appellant-accused that the conduct of the accused would show that the offence would be covered by section 304-11 of the indian Penal Code. In the facts and circumstances, we -have no hesitation to hold that the offence committed by the appellant- accused would be squarely covered by section 302 of the Indian Penal Code and nothing short of it. The learned Additional Sessions Judge was perfectly justified in convicting the appellant-accused and no interference into the impugned judgment and order of conviction is warranted. Consequently, there is on merit in the appeal and the same is dismissed. Appeal dismissed.