Judgment ( 1. ) FOR taking exception to the order of conviction and sentence passed against him by learned XIV Addl. Sessions Judge, Indore in the matter of Sessions Trial No. 318/1993, the appellant has approached this Court by preferring this appeal. Learned Addl. Sessions Judge had convicted the appellant for the offence punishable under Section 302 of the 1pc and sentenced him to undergo imprisonment for life with fine of Rs. 20,000 and in default whereof to undergo R. I. for two years. ( 2. ) THE prosecution case in brief as unfolded before the Trial Court is that appellant Jijabrao was residing with his wife Vidyabai and children in the first storey of rented house situated in Depalpur, District Indore. It is said that he was oftenly beating his wife after consuming liquor. On 21. 2. 1993, in the night between 8. 30 to 9. 00 p. m. appellant picked up quarrel with his wife and thereafter sprinkled kerosene oil on her body and set her on fire. Vidyabai started burning. On alarm over-heard by the neighbourers named Ramswaroop Tiwari (P. W. 13), Chandrakalatiwari (P. W. 14), Leela Parmar (P. W. 6) and other witnesses reached over there. They forcefully opened the door and saw Vidyabai in a burnt condition. They covered her body by blanket and also poured water to extinguish fire. The appellant verbally restrained them to extinguish the fire. Vidyabai was taken to the hospital on hand trolley by the neighbourers. Appellant ran away from the house. In Primary Health Centre, Depalpur deceased Vidyabai was attended by Dr. Sharad (P. W. 7) who immediately recorded her dying declaration (Ex. P. 7) and also sent information to Police Station, Depalpur. He also immediately referred Vidyabai for further treatment to M. Y. Hospital, Indore. In M. Y. Hospital, Indore deceased died on 25. 2. 1993. After her death, the offence was also registered under Section 302 of the IPC against the appellant. After inquest of the dead body same was sent for post-mortem. Dr. Raveendra Choudhary (P. W. 19) performed the post-mortem. According to him, deceased suffered 100 per cent burn injury. She died because of heart and respiratory failure due to burn injury. His post-mortem report is Ex. P. 22. Appellant was arrested on 26. 2. 1993 and after necessary investigation, charge sheet was filed. ( 3. Dr. Raveendra Choudhary (P. W. 19) performed the post-mortem. According to him, deceased suffered 100 per cent burn injury. She died because of heart and respiratory failure due to burn injury. His post-mortem report is Ex. P. 22. Appellant was arrested on 26. 2. 1993 and after necessary investigation, charge sheet was filed. ( 3. ) THE appellant has abjured his guilt and his defence was that deceased committed suicide by ablazing herself. He examined his son Vinay as D. W. 1 who was cited as a prosecution witness and given up by the prosecution on the ground of his winning over by the defence (see order sheet dated 27. 3. 1996 of the Trial Court ). Therefore, he was put on trial and Trial Court convicted the appellant as mentioned hereinabove. ( 4. ) THE conviction of the appellant is mainly based on dying declaration (Ex. P. 7) recorded by Dr. Sharad (P. W. 7 ). The learned Counsel for appellant has criticized the dying declaration on the ground that before recording and after concluding, Doctor has not given certificate of fitness, and two independent witnesses of recording of dying declaration has not been examined by the prosecution. The learned Counsel has also submitted that prosecution has also not examined eye-witness of the incident. The son of the appellant and deceased named Vinay who has been examined by the appellant in defence as D. W. 1 and according to this witness deceased committed suicide. The learned Counsel has also vehemently criticised the statement of prosecution witness Ramswaroop Tivvari (P. W. 13) on the ground of his four months delay in disclosure about the incident. ( 5. ) PER contra, the learned Counsel for the State has submitted that looking to the serious burn injuries, Dr. Sharad (P. W. 7) posted at Primary Health Centre, Depalpur thought it fit to record the dying declaration and as a matter of fact his this action is appreciable rather to condemn him. The question of giving certificate would not arise when medical expert himself is recording dying declaration. This itself is sufficient to say that deceased was in a fit state of mind to give dying declaration. The question of giving certificate would not arise when medical expert himself is recording dying declaration. This itself is sufficient to say that deceased was in a fit state of mind to give dying declaration. The learned Counsel has also submitted that though prosecution has cited Vinay (D. W. 1) as an eye-witness of the incident but he was given up by the prosecution assigning reason that appellant was on bail and this witness was residing with appellant/father and also reached to the Court on the date of recording of his statement with his father on 27. 3. 1996. For delay in recording the statement of prosecution witness Ramswaroop Tiwari (P. W. 13), no questions were put to this witness as well as Investigating Officer Vinod Sharma (P. W. 17) to explain the delay, therefore, no adverse inference can be drawn against the prosecution and appellant cannot derive any benefit of the same. ( 6. ) HAVING heard the learned Counsel for parties and after perusing the entire record minutely, we are of the opinion that there is no substance in the submission of the learned Counsel for appellant for interfering in the well reasoned impugned judgment of conviction passed by the Trial Court. ( 7. ) THERE is no dispute about the date and time of the incident i. e. , 21. 2. 1993 between 8. 30 to 9. 00 p. m. This is the usual time for the persons to take night meal. Normally now-a-days persons who are residing in township are not going on bed between this time. The prosecution witness Dr. Sharad (P. W. 7) has deposed that on 21. 2. 1993 at 9. 40 p. m. in the night he recorded the dying declaration of deceased Vidyabai. At that time she was fully conscious and answering the questions put by him to her. He recorded this statement in presence of witnesses Ramesh Choudhary and Kriparam. He recorded the dying declaration in question answer form and also read out the same to the deceased. After her acceptance he also took her thumb impression. She was fully conscious right from recording of dying declaration till putting her thumb impression on the same. After recording dying declaration (Ex. P. 7) he sent information through letter Ex. P. 8 to Depalpur Police Station. On the same day this witness was not cross-examined. He was cross-examined on 1. 7. She was fully conscious right from recording of dying declaration till putting her thumb impression on the same. After recording dying declaration (Ex. P. 7) he sent information through letter Ex. P. 8 to Depalpur Police Station. On the same day this witness was not cross-examined. He was cross-examined on 1. 7. 1997, i. e. , after about ten months. In paragraph five, this witness has expressed his ignorance about literacy of deceased Vidyabai that she studied up to eighth class and able to sign. This witness has specifically stated that on asking by Vidyabai he took her thumb impression on the dying declaration (Ex. P. 7 ). He has also deposed that before preparing letter (Ex. P. 8) he sent Vidyabai to M. Y. Hospital, Indore. According to the defence deceased was brought to the hospital by Ramswaroop Tiwari (P. W. 13) who was posted at that time as Sub-Inspector at Police Station, Depalpur but this suggestion was denied by this witness for want of knowledge. I le has specifically denied that he recorded the dying declaration (Ex. P. 7) at the instance of Ramswaroop Tiwari (P. W. 13) and deceased did not disclose anything to him. In the opinion of this Court, when the dying declaration has been recorded by a Doctor who is an independent agency, therefore, non-examination of the two witnesses i. e. , Ramesh Choudhary and Kriparam is not fatal to the prosecution. ( 8. ) SO far as giving the certificate of fitness of the deceased before recording of dying declaration and after completion of dying declaration on Ex. P. 7, we are of the opinion that since the dying declaration itself was recorded by the medical expert Dr. Sharad (P. W. 7), non-mentioning of certificate of fitness in the dying declaration would not materially affect the prosecution case and genuineness of the dying declaration. There is absolutely no evidence on record against Dr. Sharad (P. W. 7) having interest in the case on behalf of the prosecution. This is a case in which at the time of incident, after incident or even during the course of investigation, nobody has appeared and examined from the parental side of the deceased at whose instance police or Doctor could concoct a false case. The suggestion was given to Dr. This is a case in which at the time of incident, after incident or even during the course of investigation, nobody has appeared and examined from the parental side of the deceased at whose instance police or Doctor could concoct a false case. The suggestion was given to Dr. Sharad that deceased was literate lady and able to sign but the defence has not led any evidence to this effect. No question was put to any other witness of the prosecution in this regard by the defence. In the accused statement, appellant has nowhere stated that his wife was literate and was able to sign. The son of the appellant Vinay (D. W. 1) has also nowhere stated about education of his mother and who used to sign whenever occasion comes. In view of the Supreme Courtjudgment passed in case of Rambai v. State of Chhattisgarh ,, AIR2002 SC 3492 , (2003 )1 CALLT17 (SC ), 2002 Crilj4712 , II (2002 ) DMC770 SC , JT2002 (8 )SC 3 , 2003 (1 )MPHT20 , 2002 (7 )SCALE304 , (2002 )8 SCC83 , we are of the opinion that even without giving certificate of fitness by Doctor Sharad (P. W. 7) who recorded the dying declaration in the present case, the dying declaration can be relied upon because the Doctor has deposed in Court that she was conscious and able to give statement as discussed herein above. ( 9. ) THE learned Counsel has also raised doubt on taking of thumb impression of the deceased on dying declaration on the basis of 100 per cent burn suffered by the deceased. We are not impressed by this argument because this question was not put to Dr. Sharad that thumbs of the deceased were burnt from inner side and it was not possible to take her thumb impression. So far as opinion given by Dr. Ravindra Choudhary (P. W. 19) who conducted post-mortem about presence of 100 per cent burn injury; he has also nowhere stated that both the thumbs of the deceased were burnt form inside. In cross-examination, paragraph four he has deposed that all the fingers of both the hands and legs were burnt but defence did not put specific question that both the thumbs of the deceased were burnt from inside and thumb impression could not be taken. In cross-examination, paragraph four he has deposed that all the fingers of both the hands and legs were burnt but defence did not put specific question that both the thumbs of the deceased were burnt from inside and thumb impression could not be taken. Therefore, on the basis of the medical evidence also it could not be held that deceased was not able to put thumb impression. ( 10. ) WE have critically examined the statement of Dr. Sharad (P. W. 7) and contents of the dying declaration (Ex. P. 7) and are of the opinion that same inspire full confidence. There is no reason worth for rejecting the testimony of independent witness like Doctor about recording of dying declaration and the contents of the dying declaration are unequivocally disclosing the fact that after quarrel appellant ablazed deceased after pouring kerosene oil. ( 11. ) THERE are circumstances against the appellant and to support the prosecution case as well as the dying declaration. The incident had occurred between 8. 30 p. m. to 9. 00 p. m. in the night. Immediately thereafter the cry and fire had attracted the persons of the said locality. Shakuntalabai (P. W. 2), Heeramani (P. W. 4), and Chandrashekhar (P. W. 5), though turned hostile but have admitted the fact of burning of the deceased in the night at 9. 00 p. m. They all were awakened at that time. According to Chandrashekhar (P. W. 5) he, his wife and children were watching T. V. and after hearing cry he went out of the house and saw that persons were taking deceased in a burnt condition towards hospital. None of these witnesses have stated about the presence of the appellant. Same is the statement of Leela Parmar (P. W. 6 ). ( 12. ) SMT. Girija (P. W. 8) was the landlady of the appellant. According to this witness, on the date of incident between 8. 00 p. m. and 8. 15 p. m. in the night she heard the cry upon which she came out from her house and saw the persons were bringing down deceased from the room of the deceased. In paragraph seven she has deposed that on the next day morning, she saw the door of the house of the appellant in a burnt and broken condition. 15 p. m. in the night she heard the cry upon which she came out from her house and saw the persons were bringing down deceased from the room of the deceased. In paragraph seven she has deposed that on the next day morning, she saw the door of the house of the appellant in a burnt and broken condition. Again in paragraph eight she has deposed that when deceased was being taken out from the room, the curtain of the room was burnt. She threw water on the curtain and also saw the door in broken condition. ( 13. ) MAHESHCHANDRA Yadav (P. W. 9) is a landlord of the appellant. According to him, after seeing the crowd in front of his house he left his shop and went to the house and saw the deceased in a burnt condition. Same is the statement of Ramesh (P. W. 10 ). ( 14. ) RAMSWAROOP Tiwari (P. W. 13) is a witness who was residing by the side of the house of the appellant on rent and according to him because of sickness he was in the house. In the night at 9. 00 p. m. he was hearing news on Radio. His wife was cooking food, at that juncture he heard cry of "hindi matter omitted". The cry was coming from the room of appellant. He came out from the house and saw smoke coming out from the room of the appellant. After some time his wife also came out from the house. This witness with the help of other neighbourers broke open the door. Immediately thereafter deceased Vidyabai in a burnt condition came out from the room. She was saying "hindi matter omitted". Thereafter he sent Vidyabai in a hand trolley with the neighbourers to the hospital. The women of the locality threw water to extinguish the fire. At the time of incident appellant and his both sons were inside the house. According to this witness if they would have not broken open the door, probably all the inhabitants of the house would have died because of fire. He has also stated that on the spot appellant was saying that let his wife may burn and when deceased was sent to the hospital he was not present there. According to this witness if they would have not broken open the door, probably all the inhabitants of the house would have died because of fire. He has also stated that on the spot appellant was saying that let his wife may burn and when deceased was sent to the hospital he was not present there. At this juncture, it is pertinent to mention that in accused statement appellant has nowhere admitted his presence at the time of incident inside the house. He has also not said that he tried to save his wife who committed suicide and at the time of incident his minor son Vinay was present and witnessing the same. ( 15. ) THE evidence of Ramswaroop Tiwari (P. W. 13) has been criticized only on the ground of delay in recording his statement especially when he was posted as ASI in the same police station where the crime was registered. First of all for delay in disclosure or recording his statement by the Investigating Officer Vinod Sharma (P. W. 17) the defence has not put any question giving opportunity to both the witnesses to explain the same. The learned Counsel has placed reliance on the judgment passed by Supreme Court in case of Jagir Singh v. State (Delhi Administration) AIR 1975 SC 1422. In this judgment, at paragraph seven after discussing the statement of three eye-witnesses, the Supreme Court has held that either the eye-witnesses did not witness the incident or they could not identify the assailant because of which they did not disclose the name of the assailant at the ear jest opportunity to Bishwambhar Dayal (P. W. 9 ). In the facts and circumstances of the present case, the ground of non-disclosure of the name of assailant immediately by the eye-witnesses having opportunity to disclose before Bishwambar Dayal was considered fatal to the prosecution. ( 16. ) IN this case of Jagir Singh (supra) the delay in recording the statement is not involved and considered, whereas in the present case, the statement of Ramswaroop Tiwari (P. W. 13) has been criticized on the ground of delay in recording the statement but the defence has not put any question affording an opportunity to him as well as to the Investigating Officer to explain the delay. Recently the Supreme Court in case of State of U. P. v. Satish ,, AIR2005 SC 1000 , 2005 Crilj1428 , 2005 (2 )CTC71 , JT2005 (2 )SC 153 , (2005 )3 SCC114 , 2005 (1 )UJ367 (SC ), in paragraphs 18 and 20 has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of witnesses the defence cannot gain an advantage therefrom. Supreme Court has further held that it cannot be laid down as a rule of universal application that if there is any delay in examination of a particular witness, the prosecution version becomes suspect. ( 17. ) WE can also profitably refer the judgment passed in the case of State of Punjab v. Pohala Singh and Anr. 1 V (2003) CCR 133 (SC) : AIR 2003 SC 4407 , paragraph 13. For the sake of argument, if we exclude the statement of Ramswaroop Tiwari (P. W. 13) even then the culpability of the appellant is amply proved on the basis of the contents of the dying declaration (Ex. P. 7) proved by Dr. Sharad (P. W. 7), duly supported by the" statement of Chandrakala Tiwari (P. W. 14) who has categorically stated that on the date of incident in the night at 9. 00 p. m. she was cooking food and her husband Ramswaroop Tiwari (P. W. 13) was hearing news on Radio as well as also taking meal, they heard cry of "hindi matter omitted" from the neigbourhood. Her husband Ramswaroop Tiwari (P. W. 13) came out from the house, thereafter she also came out from the house and saw that the persons of the locality broke open the door of the appellant and thereafter brought out deceased Vidyabai in a burnt condition. Her two children and appellant also came out from the house. Deceased was crying. The persons who assembled there threw water on her and also covered her by blanket. This witness has not at all been cross-examined by the defence, therefore, there is no reason not to consider and place reliance on the statement of this witness that at the time of incident the door was broke open and at the time of incident appellant and his two sons were inside the house. Even thereafter appellant did not go to police station and the hospital. Even thereafter appellant did not go to police station and the hospital. Appellant and his sons were in the house but they did raise cry and also did not open the door when deceased was burning and crying. Her cry and smoke attracted the neighbourers who assembled and broke open the door. This is a strong circumstance against the appellant. In accused statement he has almost all denied all the evidence and in answer to question number 57 stated that he was innocent and falsely implicated and he has not committed the crime. In accused statement he has not stated that his wife committed suicide and he tried to save her. He was arrested on 26. 2. 1993. At the time of arrest, on his person according to the arrest memo sign of some burn were found while he was setting fire to his wife. The portion of arrest memo regarding setting fire to the deceased by the appellants is not admissible but the fact that appellant sustained some sort of burn injury, even thereafter did not disclose about the incident in his accused statement. He examined his son Vinay (D. W. 1) who was cited as eye-witness and given up by the prosecution because of hostility towards the prosecution. According to this defence witness there was quarrel between the appellant and the deceased and thereafter appellant and this witness Vinay slept. Thereafter he did not know what had happened. His mother poured kerosene oil on her and lit fire. He and his father awakened after hearing the sound of burn. His father tried to extinguish the fire, thereafter his mother was taken to the hospital. On the next day he went to the house of aunt (sister of the appellant ). He was residing in Samvad Nagar, Indore with his aunt. According to this witness he did not disclose anything before the police. Police did not record his statement. He was also not at all interrogated by the police. In cross-examination, paragraph two he has testified that he slept; thereafter what was done by his mother, he was not knowing. He was sleeping with his father. He has also deposed that after the incident his mother was in a conscious condition but immediately thereafter he expressed his ignorance of consciousness of his mother. ( 18. In cross-examination, paragraph two he has testified that he slept; thereafter what was done by his mother, he was not knowing. He was sleeping with his father. He has also deposed that after the incident his mother was in a conscious condition but immediately thereafter he expressed his ignorance of consciousness of his mother. ( 18. ) ON over all evaluation of the statement of this witness, there is no difficulty to come to the conclusion that at the time of incident according to this witness, he was sleeping which is not believable because it was not a time to go on bed and sleep now-a-days in a township, even for a child. The learned Counsel has placed reliance on a Supreme Court judgment rendered in case of State of Assam v. Mafizuddin Ahmed AIR 1983 SC 274 and submitted that the only child eyewitness of the occurrence has not supported the prosecution case and according to him his mother committed suicide. His father tried to save her and appellant sustained burn injury while saving his wife. This judgment is not at all helpful to the defence because in this case prosecution examined solitary eye-witness, a child witness and there was evidence of tutoring to him. The deceased survived for eight days. Immediately her dying declaration was not recorded. When her uncle met her thereafter according to the prosecution case, she made oral dying declaration to him and later to the Magistrate. The Supreme Court in the case of Mafizuddin (supra), discarded the dying declaration being tutored one and eye-witness account of the child witness on the same ground. Under this situation, Supreme Court has considered presence of the burn injuries, on medical examination, on the person of the appellant. In the case in hand, appellant has nowhere stated in his accused statement that when his wife committed suicide he was present inside the house and while extinguishing fire sustained burn injury. He was arrested after death of his wife and after five days of the incident. Neither he was present in the hospital nor went to police station and lodge any report, he was also not medically examined by Doctor. He was arrested after death of his wife and after five days of the incident. Neither he was present in the hospital nor went to police station and lodge any report, he was also not medically examined by Doctor. There is no reason to disbelieve the statement of Chandrakalatiwari (P. W. 14) who has specifically stated that door of the room was broke open and thereafter appellant, his children came out from the room and deceased was also brought out by the persons assembled there. The testimony of this witness went unchallenged. In the present case, there is absolutely no evidence available on record to say that deceased was tutored before recording of her dying declaration. In the whole prosecution case none of her relations from parent side were examined as a witness. Immediately Dr. Sharad (P. W. 7) had recorded the dying declaration and the circumstances as discussed hereinabove are duly corroborating the contents of the dying declaration, though corroboration is not required if the dying declaration is fully reliable. ( 19. ) CHANDAN Singh (P. W. 18), Head Constable was examined on 25. 9. 1997. His cross-examination was also commenced and he was cross-examined almost on all material points but further cross-examination in absence of case diary, was stopped and this witness was bound over for appearance on the next date but some how or the other this witness could not be further cross-examined by the defence and before the Trial Court when the case was closed on the ground of pendency of the trial since last 5-6 years, the defence Counsel did not point out to the Trial Court and raise objection as well as expressed his desire to further cross-examine this witness. Apart from this, defence could not cross-examine this witness fully, therefore, his whole statement is liable to be kept away for consideration in the case. This witness had also recorded the statement of the deceased immediately in the same night after receiving intimation of her admission in the hospital and this statement is admissible as dying declaration but this witness was not cross-examined fully by the defence Counsel and case was closed. Therefore, we are not considering the whole statement of this witness and learned Counsel for appellant has also no objection on this count. ( 20. Therefore, we are not considering the whole statement of this witness and learned Counsel for appellant has also no objection on this count. ( 20. ) ON the aforesaid evaluation of the material available on record, we are of the opinion that there is no substance in the appeal of the appellant. He has been rightly convicted by the Trial Court. Hence the appeal is hereby dismissed.