RAJESH TANDON, J. ( 1 ) THIS is an appeal against the judgment and order dated 15-3-2003, passed by the Sessions Judge, pithoragarh in Sessions Trial No. 3 of 2002, state v. Manohar Singh, convicting the accused -appellant Manohar Singh for the offence punishable under Section 302 I. P. C. and sentencing him to undergo imprisonment for life and to pay a fine of Rs. 1,000/-and in default of payment of fine to further undergo rigorous imprisonment for six months. ( 2 ) BRIEFLY stated the facts giving rise to the present appeal are that Chandra Singh mahar submitted a written report Ex. Ka-1, on 30-7-1998 at 3. 10 PM at Police Station, kotwali. Pithoragrah, alleging therein that on 27-7-1998 at about 8. 00 PM, at village notas, Patti Dungari Pant, District pithoragarh, accused Manohar Singh set ablaze his wife Smt. Neema Devi due to which she died on 29-7-1998 at Military hospital, Pithoragarh. On the basis of written report check F. I. R. Ex. ka-9 was prepared and a case under Section 304-B I. P. C. was registered against the accused. ( 3 ) S. I. BANSHIDHAR Sharma at the relevant time was posted at Police Station, kotwali, Pithoragarh. He received a memo from Manoj Kumar D. R, of Military Hospital on 30-7-1998 regarding the death of Smt. Neema Devi by burn injuries. On the same day Chandra Singh has also submitted report in the Police Station regarding murder of his sister Neema. S. I. Banshidhar sharma went to mortuary and held inquest on the dead body of Smt. Neema Devi which is Ex. ka-3 on record. He prepared letter to c. M. S. for post mortem Ex. ka-14, chalanlash Ex. ka-15 and photolash Ex. ka-16. The occurrence took place within the jurisdiction of Revenue Police, therefore, the case was transferred to Naib Tehsildar who directed Patwari Rai Agar to conduct investigation of the case. ( 4 ) SRI Harish Chandra Pant, Patwari, Rai agar conducted investigation of the case. He recorded statements of Chandra Singh on 28 10-1998, Subhash Uttam, S. D. M. on 31-10-1998 and Dr. M. D. Bhatt on 5-11-1998. He visited the place of occurrence on 29-11-1998 and prepared site plan. After completing investigation he submitted charge sheet Ex. ka-10 against the accused. ( 5 ) THE accused was charged under Section 302 I. P. C. He pleaded not guilty and claimed to be tried. M. D. Bhatt on 5-11-1998. He visited the place of occurrence on 29-11-1998 and prepared site plan. After completing investigation he submitted charge sheet Ex. ka-10 against the accused. ( 5 ) THE accused was charged under Section 302 I. P. C. He pleaded not guilty and claimed to be tried. ( 6 ) TO prove its case, the prosecution examined Chandra Singh Mahar (P. W. 1), Dr. M. D. Bhatt (P. W. 2), Smt. Durga Devi (P. W. 3), Subhash Chandra Uttam (P. W. 4), Harish chandra Pant (P. W. 5) and S. I. Banshidhar sharma (P. W. 6 ). The accused in his statement under Section 313 Cr. P. C. denied the prosecution allegations and stated that at about 7 PM he heard the cry of his wife neema. She was burning with flames. He tried to save her and he also sustained burn injuries. With the help of his neighbours he got admitted his wife in Military Hospital, pithorgarh. He himself was admitted in the hospital for treatment of his burn injuries. He did not adduce any evidence in defence. ( 7 ) THE learned Sessions Judge after considering the evidence on record, held the accused guilty for the offence punishable under Section 302 I. P. C. and convicted and sentenced him as stated above. Feeling aggrieved the present appeal has been filed. ( 8 ) WE have heard the learned counsel for the parties and have gone through the judgment and record of the case. ( 9 ) DR. M. D. Bhatt (P. W. 2) conducted post mortem examination on the dead body. He found the following ante mortem injuries: ( 10 ) BURN injuries present over whole body except perineum and back of hips. ( 11 ) WHOLE skin burnt over upper, lower chest, extremities, upper third of back and face. ( 12 ) ON internal examination lungs were found pale and cherry red blood was coining out. Right chamber of heart was also full of cheery red blood and left chamber was empty. ( 13 ) IN the opinion oi doctor the cause of death was shock as a result of ante mortem burn injuries. He proved post mortem report Ex. Ka-4. ( 14 ) THE learned Sessions Judge convicted the accused on the basis of circumstantial evidence and on the dying declaration of deceased Smt. Neema Devi. ( 13 ) IN the opinion oi doctor the cause of death was shock as a result of ante mortem burn injuries. He proved post mortem report Ex. Ka-4. ( 14 ) THE learned Sessions Judge convicted the accused on the basis of circumstantial evidence and on the dying declaration of deceased Smt. Neema Devi. The main circumstance which relied upon by the learned Sessions Judge is the past conduct of the accused and his habit of intoxication. To prove this circumstance the prosecution examined P. W. 1 Chandra Singh brother of the deceased and P. W. 3 Smt. Durga Devi, mother of the deceased. Both these witnesses have consistently stated that the accused used to belabour Smt. Neema. He asked the deceased to bring money from her parents so that the accused may purchase a jeep as he did not want to serve in the army. P. W. 1 Chandra Singh stated that once the accused belaboured the deceased at their home. ( 15 ) ANOTHER evidence against the accused is dying declaration of the deceased recorded by a Magistrate, wherein the deceased in unambiguous words stated that it was the accused who set ablaze her. The principle on which dying declaration is admitted in evidence is indicated in legal maxim "nemo moriturus proesumitur mentiri - a man will not meet his maker with a lie in his mouth". ( 16 ) FIRSTLY learned counsel for the appellant submitted that in the statement of the deceased full description of the occurrence has not been given. Further considering the extent of burns alleged to have been suffered by the deceased, it is highly improbable that she was in a fit state of mind to give any statement. ( 17 ) THE Second point argued by the learned counsel for the appellant is that the f. I. R. is belated and was lodged on 30-7-1998 whereas the incident took place on 27-7-1998 and death of Smt. Neema occurred in the night of 29-7-1998. The dying declaration of the deceased was recorded on 28-7-1998 at 8. 30 PM. The learned counsel has vehemently urged that the doctor could lodge the report when the deceased was admitted in the hospital. Further the S. D. M. who recorded dying declaration did not lodge any report and the prosecution has given no explanation of delay in lodging the report. 30 PM. The learned counsel has vehemently urged that the doctor could lodge the report when the deceased was admitted in the hospital. Further the S. D. M. who recorded dying declaration did not lodge any report and the prosecution has given no explanation of delay in lodging the report. ( 18 ) THIRDLY the learned counsel for the appellant argued that the prosecution did not disclose the source of information by which the S. D. M. Pithoragarh proceeded to record the statement of Smt. Neema Devi. ( 19 ) THE last point argued by the learned counsel for the appellant is that the Sessions Judge was not justified to treat paper no. 3-ka/23 as inadmissible in evidence. ( 20 ) IN response, learned counsel for the state submitted that the trial Court has analysed and considered the evidence on record and arrived to the conclusion that the same is clear and cogent. The dying declaration was recorded by the Magistrate in presence of doctor. There is no reason for the witnesses to depose against the accused. It is not correct that the doctor has not certified about the deceased being in a fit mental condition to make a declaration. ( 21 ) THE first argument raised by the learned counsel for the appellant pertaining to acceptability of dying declaration made by deceased Smt. Neema Devi, before the executive Magistrate, we may state that the apex Court in AIR 1992 SC 1817 : (1992 Cri lj 2919) Smt. Paneben v. State of Gujarat has laid down the principles governing the dying declaration. The same is quoted below : (i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (Munnu Raja v. State of M. P. 1976 (2) SCR 764) : (1976 cri LJ 1718 ). (ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (State of U. P. v. Ram Sagar Yadav); ramawati Devi v. State of Bihar, AIR 1985 sc 416 ). (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (iii) This Court has to scrutinise the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had opportunity to observe and identify the assailants and was in a fit state to make the declaration. (K. Ramchandra reddy v. Public Prosecutor, AIR 1976 SC 1994) : (1976 Cri LJ 1548 ). (iv) Where dying declaration is suspicious it should not be acted upon without corroborative evidence, (Rasheed Beg v. State of M. P. , 1974 (4) SCC 264) : (1974 Cri LJ 361 ). (v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (Kake Singh v. State of M. P. , AIR 1982 SC 1021) : (1982 Cri LJ 986 ). (vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (Ram Manorath v. State of U. P. , 1981 (2) SCC 654 ). (vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (State of maharashtra v. Krishnamurti Laxmipati naidu, AIR 1981 SC 617) : (1991 Cri LJ 19 ). (Viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. Surajdeo Oza v. State of Bihar, AIR 1979 SC 1505 : (1979 Cri LJ 1122 ). (ix) Normally the Court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eye witness has said that the deceased was in a fit and conscious state to make this dying declaration, the medical opinion cannot prevail. (Nanahau Ram v. State of M. P. , air 1988 SC 912) : (1998 Cri LJ 936 ). (x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (State of U. P. v. Madan Mohan, air 1989 SC 1519) : (1989 Cri LJ 1485 ). ( 22 ) IN the light of the above principles of law laid down by the Apex Court the acceptability of alleged dying declaration in the present case has to be considered. (State of U. P. v. Madan Mohan, air 1989 SC 1519) : (1989 Cri LJ 1485 ). ( 22 ) IN the light of the above principles of law laid down by the Apex Court the acceptability of alleged dying declaration in the present case has to be considered. There is no corroboratory evidence in this case and the entire prosecution case rests upon the dying declaration made by the deceased. The dying declaration recorded by a Magistrate and it is in question answer form. The deceased has narrated as under: ( 23 ) THERE is no material on record to show that the dying declaration was the result of any imagination, tutoring or prompting. The accused who is the husband of the deceased has not given any version as to how his wife caught fire. Therefore, the dying declaration made by the deceased appears to have been made by Smt. Neema devi voluntarily and the same is trustworthy and has credibility. ( 24 ) THE learned counsel has stated that there is no certificate of the doctor regarding mental condition of the deceased. The argument of the learned counsel is not correct regarding the certificate of doctor in respect of mental consciousness of the declarant. ( 25 ) ON the top of the statement of deceased. Dr. S. K. Trivedi, Maj. AMC has given the following certificate :"this is to certify that, Neema Devi aged 22 years, wife of Army No. 4186805 M Sepy manohar Singh of 9 Kumaon Regt. who was admitted to this hospital on 28-7-1998 at 4. 20 hrs, WD 80% burn is presently fit to give her verbatim statement in front the District Civil officials. " ( 26 ) ALTHOUGH the doctor did not used the word 'mental condition' however, in the certificate given by the doctor after recording the statement, he has clearly mentioned that the injured was fully conscious state of mind while giving statement. The certificate is quoted below :"the patient, Smt. Neema Devi wife of army No. 4186805 Sepy Manohar Singh of 9 Kumaon Regt. who was admitted in the hospital on 28-7-1998 at 4. 20 hrs. with 80% burn gave her verbatim statement at 8. 30 pm in the presence of S. D. M. Pithoragarh and while giving her statement she was fully conscious state of mind. " ( 27 ) SRI Subhash Chandra Uttam, S. D. M. (PW. who was admitted in the hospital on 28-7-1998 at 4. 20 hrs. with 80% burn gave her verbatim statement at 8. 30 pm in the presence of S. D. M. Pithoragarh and while giving her statement she was fully conscious state of mind. " ( 27 ) SRI Subhash Chandra Uttam, S. D. M. (PW. 4) recorded the dying declaration of the deceased. He stated that Dr. S. K. Trivedi had given certificate that Smt. Neema Devi was in a fit state to give statement. He stated as under : (. . Vernacular matter omitted. .) ( 28 ) THIS witness proved the signatures and certificate given by the doctor. The Apex court in Laxman v. State of Maharashtra 2002 SCC (Crl) 1491 : (2002 Cri LJ 4095)held that doctor's certificate while recording dying declaration as to the evidence of declarant's state of mind is only a rule of caution and not a mandatory requirement. It has been held as under :"3. 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 shouldbe 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. 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 eyewitnesses 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 ensures 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 visual 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". 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". ( 29 ) HON'ble Supreme Court in the case muthu Kutty v. State by Inspector of Police, tamil Nadu 2004 (4) Crimes 328 : (AIR 2005 sc 1473), placing reliance on the above quoted principle of law held as under :"14. This is a case where the basis of conviction of the accused is the dying declaration. The situation in which a person is on death bed is so solemn and serene when he is dying that the grave position in which he is placed, is the reason in law to accept veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Besides, should the dying declaration be excluded it will result in miscarriage of justice because the victim being generally the only eye witness in a serious crime, the exclusion of the statement would leave the Court without a scrap of evidence. " ( 30 ) IRI the light ot the principles of law laid down by the Apex Court the dying declaration recorded by the Executive Magistrate and proved on oath before the Sessions judge, need not be doubted. The S. D. M. being a disinterested witness and a responsible officer and there being no. circumstances or material to suspect that the Magistrate had any animus against the accused or was in any way interested for fabricating a dying declaration, question of doubt on the declaration, recorded by the Magistrate does not arise. ( 31 ) THE dying declaration made by Smt. Neema Devi further finds support from the statement of P. W. 3 Smt. Durga Devi. She stated that when she met with her daughter neema Devi at the Hospital, she stated that she was set to ablaze by her husband. She stated as under: (. . Vernacular matter omitted. .) ( 32 ) THE second point argued by the learned counsel for the appellant regarding delay in lodging F. I. R. has also got no force in view of the peculiar circumstances of the present case. Deceased Smt. Neema Devi was living with her husband alone in village notas. She was brought to Military Hospital, Pithoragarh and was got admitted there by the villagers on 28-7-1998 at 4. 20 AM. Deceased Smt. Neema Devi was living with her husband alone in village notas. She was brought to Military Hospital, Pithoragarh and was got admitted there by the villagers on 28-7-1998 at 4. 20 AM. Her husband accused Manohar Singh was also with her. The doctor of Military Hospital informed the S. D. M. on the same day and he recorded statement of Smt. Neema devi at 8. 30 PM. Smt. Neema Devi died in the night of 29-7-1998 and report was lodged by her brother P. W. 1 Chandra Singh on 30-7-1998 at 12. 15 PM. It appears that police swung into action only when they received a memo that the dead body of Smt. Neema was kept in mortuary and thereafter a written report was submitted by P. W. 1 Chandra singh in Police Station. The FIR ought to have been lodged by the S. D. M. Pithoragarh who recorded the statement of Smt. Neema on 28-7-1998 at 8. 30 PM. The S. D. M. could have been direct the Patwari concerned to lodge the report or himself could file a report in the Police Station or may be volunteered by any of the bystander to the patient but he did not do so. Thus the delay in registering the case was due to ignorance and negligence on the part of the Executive magistrate. However, in this case delay in lodging the report had not caused any serious prejudice to the accused nor did it cast any doubt on the prosecution case. There is no allegation that the accused was falsely roped in and a case was fabricated against him. From the evidence on record there is no doubt regarding the prosecution case and thus the delay in lodging F. I. R. is immaterial in this case. ( 33 ) THE third point argued by the learned counsel for the appellant is that the prosecution failed to disclose the source of information by which the S. D. M. was prompted to record the statement of Smt. Neema Devi at Military' Hospital. In this regard P. W. 4 Subhash Chandra Uttam, S. D. M. clearly stated in his statement that on receiving information from the Military Hospital, he went there to record the statement of Smt. Neema Devi. He stated as under: (. . Vernacular matter omitted. In this regard P. W. 4 Subhash Chandra Uttam, S. D. M. clearly stated in his statement that on receiving information from the Military Hospital, he went there to record the statement of Smt. Neema Devi. He stated as under: (. . Vernacular matter omitted. .) ( 34 ) THUS from the statement of the then s. D. M. Pithorgarh it is clear that he went to Military Hospital for recording the dying declaration of the deceased on the information received from the authority of Military hospital and the argument of the learned counsel for the appellant that source of information had not been disclosed, has no force. ( 35 ) THE last argument of the learned counsel for the appellant is in respect of paper No. 30-ka/23. This paper is a Photostat copy of alleged statement of Smt. Neema recorded by S. O. Police Station Gangolihat before the doctor. The Investigating Officer, p. W. 5 stated that he got this paper from sri B. L. Arya, Sub-Inspector, Police Station, gangolihat on 28-10-1998. Although this paper has been filed by the Investigating officer himself but this document cannot be used as evidence in defence without proving it. The accused had ample opportunity to get summoned and examine S. I. B. L. Arya, who allegedly recorded this statement to prove the document but the defence did not care to do so and thus this document is inadmissible in evidence. We uphold the findings of the learned Sessions Judge in this regard. ( 36 ) THUS in view of the discussion made above, we find no illegality or impropriety in the order passed by the learned Sessions judge, Pithoragarh. The appeal has no force and deserves to be dismissed. ( 37 ) ACCORDINGLY, the appeal is dismissed. Judgment and order passed by the Sessions judge, Pithoragarh is affirmed, ( 38 ) LET the lower Court's record along with a copy of this judgment be sent to the sessions Judge concerned for compliance. Appeal dismissed. --- *** --- .