JUDGMENT This appeal by the State after grant of leave is directed against the judgment and order of acquittal passed by the learned Sessions Judge, acquitting the sole respondent-accused for the offence punishable under Section 302 of the Indian Penal Code, 1860 by his order dated 4-8-1999. 2. The case of the prosecution in brief is as under: The deceased-Nagarathnamma was the wife of accused-respondent, Shivashankar and they were married 5 to 6 years prior to the incident in question. It is the prosecution case that the respondent-husband was harassing and ill-treating the deceased and there was a quarrel between the couple as the accused was not bringing the food articles to the house and he used to come late by coming drunk and the deceased was telling the accused that she would not send her son to the school, if the accused fails to provide money. It was the cause for the difference between the parties and the accused did not give money to the family and that he was beating the deceased. The couple were living in a house at Magadi Road and the deceased had also lodged a complaint against her husband in connection with the harassment and the accused-respondent had also filed a suit against the deceased. 3. It was with this background on 20-2-1995 at about 2.30 p.m., when Narasimha Murthy-P.W. 4, brother of the deceased came to Bangalore and went to the house of his sister, Nagarathnamma to inform her about his marriage proposal, he found the house locked, but a window was open and through the said window, P.W. 4 saw the quarrel going on between the accused and the deceased; the deceased was telling the accused that she wanted to go to JINDAL, but the accused suspected her fidelity and questioned her as to where she was going and to see whom. Inspite of P.W. 4 making requests to both of them to open the door and to stop the quarrel, they did not heed his advice. Inspite of P.W. 4 making requests to both of them to open the door and to stop the quarrel, they did not heed his advice. Subsequently P.W. 4 saw the deceased coming out of the kitchen with fire burning on her body and there afterwards the accused opened the door and came out; P.W. 4 told the accused to bring an autorickshaw and immediately went inside the house and poured water on the deceased Nagarathnamma to put off the fire and then covered her with a blanket; by that time the accused brought the autorickshaw and they took her to the hospital. 4. P.W. 1, Dr. K.B. Damodar, Assistant Surgeon of Victoria Hospital, received the injured Nagarathnamma and immediately informed the police. P.W. 11, Head Constable of Magadi Road Police Station, on receiving the information, reached the hospital at about 4.00/4.30 p.m. and found Nagarathnamma with burn injuries and as she was in a fit condition to make a statement, P.W. 11 recorded her statement after taking the permission of the doctor, P.W. 1. The said statement of the deceased is Ex. P. 1. It was signed by the deceased at Ex. P. 1(b), by P.W. 1 at Ex. P. 1(a) and P.W. 11 at Ex. P. 1(c). He returned to the police station with Ex. P. 1. P.W. 12, Yogananda, PSI of Magadi Road Police Station, registered a case in Crime No. 122 of 1995 initially for an offence under Section 307 of the IPC and sent the First Information Report as per Ex. P. 6; he visited the scene of offence and after opening the door of the house, prepared the spot mahazar as per Ex. P. 3 in the presence of the pancha, P.W. 3, Narasimhulu. The woollen blanket was also seized. Thereafter, the deceased succumbed to the burn injuries on 23-2-1995 at about 8.20 p.m. and on death memo being received, the case name to be altered to Section 302 of the IPC. The PSI recorded the statement of the witnesses and collected the death memo, Ex. P. 9 and handed over the investigation to C.W. 22. Upon completion of investigation, charge-sheet came to be filed. 5. The prosecution in order to bring home the guilt of the accused, examined at the trial P.Ws. 1 to 12 and documents Exs. P. 1 to P. 9 were marked. On behalf of the defence, documents Exs. P. 9 and handed over the investigation to C.W. 22. Upon completion of investigation, charge-sheet came to be filed. 5. The prosecution in order to bring home the guilt of the accused, examined at the trial P.Ws. 1 to 12 and documents Exs. P. 1 to P. 9 were marked. On behalf of the defence, documents Exs. D. 1 to D. 6 were marked. On completion of the evidence on the side of the prosecution and the accused having taken the stand of total denial in his statement, the accused-respondent examined on his behalf D.W. 1, Usman who has spoken to the legal notice issued by him to the father of the deceased and has produced Exs. D. 2 to D. 6. 6. The learned Sessions Judge after hearing the evidence on record and upon hearing arguments addressed before him, came to the conclusion that the prosecution had failed to establish the case against the accused-respondent and found that the couple led a happy marital life for more than 9 years and had a son, Santoshnag, P.W. 7. Further, the Trial Court did not place reliance on the dying declaration, Ex. P. 1 recorded by P.W. 11 on the ground that it was not recorded in accordance with the principles of law laid down by the Apex Court, that it was not in the form of question and answer or in the form as told by the deceased and that it was not recorded by the doctor or by the Magistrate. Based on these infirmities, the Trial Court disbelieved the dying declaration, Ex. P. 1. As there was no evidence of eye-witness with regard to the deceased being set on fire by the accused, the Trial Court ultimately acquitted the accused-husband. 7. Aggrieved by the said order of acquittal, the State is before us and we have heard the submissions made by the learned Additional State Public Prosecutor Sri Pinto and have carefully perused the entire evidence on record with his assistance. 8. It has to be mentioned at this juncture that the learned Counsel for the respondent remained absent when arguments were advanced by Sri Pinto for the State on the last occasion. Even today he did not appear before us inspite of waiting for him for more than an hour. As such, we are left with no other alternative than to proceed with the matter. Even today he did not appear before us inspite of waiting for him for more than an hour. As such, we are left with no other alternative than to proceed with the matter. In doing so, we have kept in view the observations of the Apex Court in the case of Bani Singh v State of Uttar Pradesh 1. 9. The learned State Counsel Pinto, submitted that the prosecution has established its case against the respondent through the evidence of P.Ws. 1 and 11 in whose presence the deceased made her dying declaration as per Ex. P. 1 which was recorded by P.W. 11; Ex. P. 1 also finds corroboration in the evidence of P.W. 4, brother of the deceased and therefore the Trial Court was in error in not acting upon the dying declaration of the deceased. The Trial Court's reasoning with regard to the dying declaration not being recorded either by the doctor or by the Magistrate is not in accordance with the principles of law laid down by the Apex Court and therefore there is no prohibition for a police officer to record a dying declaration. In the instant case, Ex. P. 1 has been recorded by P.W. 11 and the doctor has certified that the patient was in a fit condition to make her statement and therefore there was absolutely no good reason for the Trial Court to reject the dying declaration and hence, the prosecution has made out a case for conviction of the accused. Hence the order of acquittal is liable to be set aside. 10. Having regard to the submissions made to the above effect, the only point for consideration is: Whether the State has made out a case for interference by us in this appeal? 11. At the outset, we have carefully examined the dying declaration, Ex. P. 1 made by the deceased in the light of the evidence of P.Ws. 1 and 11 in particular, as well as the evidence of P.W. 4. In Ex. P. 1, the deceased had given a graphic account of the entire incident and she has also mentioned about the harassment given to her by her husband and filing of complaint given by her. She has also spoken about the presence of P.W. 4 in the house on that fateful day. 12. Apart from the above material evidence in the form of dying declaration, Ex. She has also spoken about the presence of P.W. 4 in the house on that fateful day. 12. Apart from the above material evidence in the form of dying declaration, Ex. P. 1, the prosecution has also examined Dr. K.B. Damodar, P.W. 1 who was the Assistant Surgeon at Victoria Hospital, Bangalore. His evidence read in conjunction with the evidence of P.W. 11, Head Constable, goes to inspire the confidence in us to accept the dying declaration, Ex. P. 1 made by the deceased. P.W. 2 is the doctor who conducted the post-mortem and has given his report, Ex. P. 2. In his opinion, the cause of death was tixmia as a result of infection consequent upon burns sustained. He has noted 65% burn injuries on the deceased. P.W. 4, Narasimha Murthy is the material witness who has seen the incident relating to the quarrel between the deceased and accused. P.Ws. 5 and 10 are the parents of the deceased and they speak to the harassment given by the accused to the deceased and P. W. 4 going to the house of the deceased ~d the fact of the accused setting the deceased on fire. P.W. 6 is the panch for the inquest, Ex. P. 4. P.W. 7 is the son of the deceased and accused, but he has not supported the prosecution case and so is the case with P.W. 8, an acquaintance of the accused. P. W. 9 is another neighbour who stays in the ground floor and the accused used to reside in the 1st floor of the building. This witness speaks to the deceased being found with burn injuries and being taken to the hospital in the auto. 13. From the above discussion of the evidence on record, it is clear that the case of the prosecution rests mainly upon the dying declaration, Ex. P. 1. P.W. 11, Head Constable, has deposed in his evidence that on 20-2-1995, he was instructed to go to Victoria Hospital to record the statement of Nagarathnamma and accordingly he reached the hospital at 4.00/4.30 p.m. and found her with burn injuries; since she was in a fit condition, after obtaining the permission of the doctor, Damodar, P.W. 11 recorded her statement as per Ex. P. 1. The said statement was signed by the deceased at Ex. P. 1(b), by the doctor at Ex. P. 1. The said statement was signed by the deceased at Ex. P. 1(b), by the doctor at Ex. P. 1(a) and by P.W. 11 himself at Ex. P. 1(c). In his cross-examination, the only suggestion put to him is that he did not take anything in writing from the doctor to record the statement of the deceased, made no request to the doctor and that he recorded the statement himself and took half an hour to record the statement. This witness has denied the suggestion that the patient was not in a fit condition to make her statement and has further denied that Ex. P. 1(b) is not the signature of the deceased, Nagarathnamma. Here it is pertinent to mention that although P.W. 4 has disputed the signature of the deceased at Ex. P. 1(b), the evidence of P.W. 1 goes to indicate that the deceased did sign at Ex. P. 1(b). However, we also examined the signature of the deceased found in Ex. P. 1 along with her signature in one of the acknowledgements (Ex. D. 2) produced during the trial and we find there is similarity in the letters and gaps in the signature, although the signature in Ex. P. 1(b) was made by the deceased when she was suffering from burn injuries. 14. P.W. 1 is Dr. K.P. Damodar who was the doctor on duty. His evidence fully supports the evidence of P.W. 11. During examination-in-chief, he has deposed to the following effect: " ... The police recorded the statement of the injured. The patient was in a fit condition to make statement and it was recorded before me .... ". In the cross-examination of the doctor, nothing worthwhile has been elicited to disbelieve his testimony with regard to his presence when the statement of the deceased was recorded by P.W. 11 as per Ex. P. 1. This evidence goes to indicate that the deceased was in a fit condition to make her statement and the endorsement to his effect is made by him at Ex. P. 1(a). Therefore, the cumulative effect of the evidence of P.Ws. 1 and 11 coupled with Ex. P. 1 is that the deceased did make her dying declaration as per Ex. P. 1 and it was recorded by P.W. 11 in the presence of the doctor, P.W. 1 and that she was in a fit condition to do so. P. 1(a). Therefore, the cumulative effect of the evidence of P.Ws. 1 and 11 coupled with Ex. P. 1 is that the deceased did make her dying declaration as per Ex. P. 1 and it was recorded by P.W. 11 in the presence of the doctor, P.W. 1 and that she was in a fit condition to do so. There is nothing in the cross-examination of these witnesses to disbelieve their version with regard to the dying declaration made by the deceased. 15. Before placing reliance on the dying declaration, Ex. P. 1, it is necessary to refer to the position of law with regard to its acceptance having regard to the Trial Court's reasoning. There is nothing in the cross-examination of these witnesses to disbelieve their version with regard to the dying declaration made by the deceased. 15. Before placing reliance on the dying declaration, Ex. P. 1, it is necessary to refer to the position of law with regard to its acceptance having regard to the Trial Court's reasoning. The Apex Court in the case of Khushal Rao v State of Bombay1, has laid down at paragraph 16, the following proposition of law with regard to the evidentiary value of dying declaration: "It cannot be laid down as an absolute rule of law that a dying declaration cannot form the sole basis of conviction unless it is corroborated; each case must be determined on its own facts keeping in view the circumstances in which the dying declaration was made; it cannot be laid down as a general proposition that a dying declaration is a weaker kind of evidence than other pieces of evidence; a dying declaration stands on the same footing as another piece of evidence and has to be judged in the light of surrounding circumstances and with reference to the principles governing the weighing of evidence; a dying declaration which has been recorded by a competent Magistrate in the proper manner, that is to say, in the form of questions and answers, and, as far as practicable, in the words of the maker of the declaration, stands on a much higher footing than a dying declaration which depends upon oral testimony which may suffer from all the infirmities of human memory and human character, and in order to test the reliability of a dying declaration, the Court has to keep in view, the circumstances like the opportunity of the dying man for observation, whether the capacity of the man to remember the facts stated, had not been impaired at the time he was making the statement, by circumstances behind his control; that the statement has been consistent throughout if he had several opportunities of making a dying declaration apart from the official record of it; and that the statement had been made at the earliest opportunity and was not the result of tutoring by interested parties" . 16. 16. A Constitution Bench of the Apex Court in the case of Laxman v State of Maharashtra1, has laid down the following proposition of law at paragraph 3 with regard to dying declaration: "Normally, the Court in order to satisfy whether the deceased was in a fit mental condition to make a dying declaration look upto 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 with 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 in 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 is absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate, there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is proved by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the doctor the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise". 17. 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". 17. Therefore in the instant case, we are fully satisfied with the evidence placed on record by the prosecution with regard to the deceased making her dying declaration as per Ex. P. 1. Not only the doctor was present when the statement of the deceased was recorded, but he has also certified in Ex. P. 1(a) that the deceased was in a fit state of mind to make the statement. Hence we see no good reason to disbelieve the evidence with regard to the dying declaration, Ex. P. 1, nor can it be said that no reliance can be placed on the said document. 18. Ex. P. 1 is also supported by the evidence of P.W. 4, Narasimha Murthy who has deposed in his evidence that when he went to the house of the accused, he found the deceased and the accused quarrelling and he saw this through the open window; he also saw the deceased, Nagarathnamma coming out of the kitchen with fire burning on her body and the accused opened the door and P.W. 4 asked the accused to bring an autorickshaw to take her to the hospital; thereafter P.W. 4 went inside the house, removed the clothes of the deceased and covered her with a blanket and took her to the hospital accompanied by the accused and after inquiring with the doctor, P.W. 4 went to bring medicines and then informed Magadi Road Police Station. Apart from this, P.W. 4 has also stated in his evidence that he enquired with his sister in the hospital and she told him that the accused had himself poured kerosene on her body and lit fire. This evidence of P.W. 4 fully corroborates the dying declaration, Ex. P. 1 in all respects. In fact, even in Ex. P. 1 there is mention of the presence of P.W. 4 in the house of the accused and P.W. 4 taking her to the hospital by covering her with a blanket. In the cross-examination of P.W. 4, nothing has been brought out to disbelieve his testimony. 19. P.Ws. P. 1 in all respects. In fact, even in Ex. P. 1 there is mention of the presence of P.W. 4 in the house of the accused and P.W. 4 taking her to the hospital by covering her with a blanket. In the cross-examination of P.W. 4, nothing has been brought out to disbelieve his testimony. 19. P.Ws. 5 and 10 are the parents of the deceased and both of them speak to the harassment given by the accused to the deceased and the deceased telling them about the accused coming home drunk and beating her. Both these witnesses have stated that when they enquired with the deceased at the hospital, she told them that the accused beat her, poured kerosene and set her on fire. In the cross-examination of these witnesses, nothing has been brought out to disbelieve their testimony with regard to the material aspect of their evidence. 20. Thus, on a careful examination of the entire evidence on record and particularly Ex. P. 1, dying declaration made by the deceased, we see no infirmity in the prosecution case and that is sufficient to convict the accused for the offence of murder under Section 302 of the IPC. The Trial Court has not appreciated the evidence on record particularly those of P.Ws. 1, 11 and 4 and Ex. P. 1. On the other hand, the Trial Court has stated that Ex. P. 1 was not recorded in question and answer form and that it was not recorded by the doctor or Magistrate. It has to be mentioned that no such requirement exists in the eye of law so far as dying declaration is concerned. Therefore, the Trial Court has lost sight of the law bearing on the point which we have referred to in the course of our discussion above, particularly in the light of the Constitution Bench decision of the Supreme Court in Laxman's case. The Trial Court could not have disbelieved Ex. P. 1 looked from any angle. The fact that the deceased died due to burn injuries is confirmed from the evidence of P.W. 2 who conducted the post-mortem examination and issued the report as per Ex. P. 2. Therefore, the conclusion that the deceased died a homicidal death on account of the accused setting her on fire thus gets established beyond reasonable doubt. 21. The fact that the deceased died due to burn injuries is confirmed from the evidence of P.W. 2 who conducted the post-mortem examination and issued the report as per Ex. P. 2. Therefore, the conclusion that the deceased died a homicidal death on account of the accused setting her on fire thus gets established beyond reasonable doubt. 21. Although P.W. 7, son of the deceased, has not supported the prosecution case, the said evidence will not in any way affect the credit worthiness of the dying declaration, Ex. P. 1 made by the deceased. We therefore see no infirmity in the prosecution case and as such the State has made out a case for interference by us in this appeal. 22. We are conscious of the fact that the Appellate Court would not generally interfere with the order of acquittal if the view taken by the Trial Court is a possible view of the evidence on record. In our view, this is not a case which permits the view taken by the Trial Court as a possible view of the evidence on record. On the other hand, the Trial Court's reasoning is perverse and contrary to the evidence on record and to the established position of law with regard to the appreciation of dying declaration by the Courts. As such, the State has made out a case for interference by us. There are compelling reasons to interfere with the order of acquittal. The judgment and order of acquittal is therefore liable to be set aside and the accused is liable to be convicted for the offence punishable under Section 302 of the IPC. 23. We have heard the learned State Counsel on the question of sentence. He has submitted that the punishment prescribed under law be imposed upon the respondent-husband. Unfortunately we were deprived of hearing the learned Counsel for the respondent on the question of sentence as he as well as the respondent remained absent, even during the course of dictating the judgment in open Court. As such, we are left with no other alternative than to proceed further. 24. Having regard to the nature of the offence which has been brought out against the respondent-accused, we do not feel that this is a case falling under the category of 'rarest of rare cases' having regard to the facts and circumstances of the case on hand. As such, we are left with no other alternative than to proceed further. 24. Having regard to the nature of the offence which has been brought out against the respondent-accused, we do not feel that this is a case falling under the category of 'rarest of rare cases' having regard to the facts and circumstances of the case on hand. As such the only alternative is that of life imprisonment with fine. The accused is therefore liable to undergo imprisonment for life and he shall also pay fine of Rs. 50,000/- which amount if recovered be kept in fixed deposit in the name of the only son of the deceased, P.W. 7, Santoshnag. 25. In the result, we proceeds to pass the following order: (1) The State appeal is allowed; (2) The judgment and order of acquittal passed by the Trial Court is set aside; (3) The respondent-accused is convicted for the offence punishable under Section 302 of the IPC and he is sentenced to undergo imprisonment for life and he shall also pay fine of Rs. 50,000/- (rupees fifty thousand only) and in default of payment of fine, to undergo further rigorous imprisonment for a period of two years; (4) If the above amount is collected, the same shall be kept in fixed deposit in the name of the only son of the deceased, P.W. 7, Santoshnag, and interest on the said deposit shall be paid to him every quarter; (5) The accused-respondent is also entitled to set off as per Section 428 of the Cr. P.C.; (6) The accused-respondent shall forthwith surrender before the Trial Court to undergo the sentence imposed on him. We direct the Trial Court to take effective steps to secure the presence of the respondent in order that he undergoes sentence as imposed upon him by us as above. It is ordered accordingly.