D.D. SINHA, J.:- This Criminal Appeal is directed against the judgment and order dt.7-2-2002 passed by the Additional Sessions Judge, Amravati whereby the appellant is convicted for the offence punishable u/s.302 of the Indian Penal Code and is sentenced to undergo imprisonment for life and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for six months. 2. Prosecution case, in nutshell, is as follows: Vandana (deceased) was the daughter of Pandurang Balaji Gobade (P.W.3). Vandana married to the appellant in the year 1994 (it was her second marriage). Vandana gave birth to two children namely Raman and Naresh. On the day of occurrence, the appellant stayed with deceased Vandana, who was residing in her paternal house at Ner Pinglai. The appellant used to earn his livelihood by pulling rickshaw. On 22-6-2001 Pandurang (P.W.3) went to the field of Ambadas for doing agricultural work. Deceased Vandana and her mother were present in the house. Pandurang (P.W.3) returned to the house at about 6.30 or 7.00 P.M. There was nobody in the house. Neighbour told him that Vandana's husband had come and had visited his house and was under the influence of liquor. -He was persuading Vandana to leave her parental house and to accompany him to his room. Vandana refused to oblige him and therefore, appellant started beating Vandana and set her on fire. Vandana was admitted in the hospital at Amravati. On 24-6-2001, Pandurang (P.W.3) visited the hospital at Amravati and met Vandana. Vandana told him that her husband quarelled with her under the influence of liquor, beat her and started loading his rickshaw with the household articles. She also disclosed that appellant asked her to accompany him to his room and when she refused to do so, he poured kerosene on her person and set her on fire. 3. On 23-6-2001, the Special Judicial Magistrate (P.W.4) recorded dying declaration of Vandana which is Exh.29. On the basis of said dying declaration, First Information Report came to be registered which is Exh.34. Vandana died on 30-6-2001. Dr. Swati w/o. Madhukarrao Patil (P.W.6) conducted Post Mortem examination on the dead body and proved the contents of the Post Mortem report (Exh.40). According to the evidence of Dr. Swati Patil, probable cause of death was Septicemia shock due to 72% burn injuries. Vandana died on 30-6-2001. Dr. Swati w/o. Madhukarrao Patil (P.W.6) conducted Post Mortem examination on the dead body and proved the contents of the Post Mortem report (Exh.40). According to the evidence of Dr. Swati Patil, probable cause of death was Septicemia shock due to 72% burn injuries. The investigating officer, after completing the formal investigation filed the charge-sheet in the Court of the Judicial Magistrate, First Class. Since the offence was exclusively treble by the Sessions Court, the case was committed to the Sessions Court. Charge u/s.302 and 498-A of the Indian Penal Code was framed, contents thereof were explained to the appellant who pleaded not guilty to the charge and claimed to be tried. Defence of the accused is of total denial. In this statement u/s.313 of the Code of Criminal Procedure, the appellant has stated that, at the time of incident, he was not present on the spot and came to know about the incident when Vandana was already admitted in the hospital. He has further stated that Vandana was residing at her parent's house and the room in which he was residing was 1 1/2 km. away from the said house. Since the appellant was not paying money to her he was falsely implicated. 4. Mr. V.M. Deshpande, learned counsel for the accused has submitted that the prosecution case is primarily based on the dying declaration of deceased Vandana (Exh.29) as well as the evidence of Pandurang (P.W.3) and the medical evidence. 5. Counsel for the appellant has contended that the dying declaration recorded by the Special Judicial Magistrate is in question and answer forms and there were 11 to 12 questions put to deceased Vandana by the Magistrate which were alleged to have been answered by deceased Vandana. It is contended that, in the cross-examination of witness Wasudeo Deorao Mahore (Special Judicial Magistrate), he has stated that the whole dying declaration was recorded by him within five minutes, which is improbable. It is submitted that looking to the questions put to Vandana and answers recorded by the Magistrate it would take at least 15 to 20 minutes to record the dying declaration and it was not possible for the Magistrate to record such dying declaration within five minutes. Mr. It is submitted that looking to the questions put to Vandana and answers recorded by the Magistrate it would take at least 15 to 20 minutes to record the dying declaration and it was not possible for the Magistrate to record such dying declaration within five minutes. Mr. V.M. Deshpande, learned counsel for the appellant contended that the statement of Wasudeo (Special Judicial Magistrate) in his evidence that he recorded dying declaration within five minutes creates doubt about authenticity and genuineness of the dying declaration and renders the dying declaration untrustworthy. 6. It is further contended that, in the instant case, prosecution has not examined the doctor who has alleged to have examined deceased Vandana before and after recording of her dying declaration and gave certificate that she was fully conscious and fit to give dying declaration and was also conscious while recording her dying declaration. Non-examination of doctor creates doubt as to whether deceased Vandana because of extensive burns was really conscious to give her dying declaration Similarly, whether she was throughout conscious during the course of recording of her dying declaration by the Special Judicial Magistrate, which renders the dying declaration suspicious and therefore, liable to be discarded. 7. It is further contended that the evidence of Pandurang (P.W.3), to whom the deceased had alleged to have given oral dying declaration is also not free from material omissions and is also contradictory to the dying declaration given by deceased Vandana. It is submitted that, in the cross-examination of this witness, he has stated that the appellant was a rickshaw puller and was residing near Duff in hospital Amravati. Whereas deceased Vandana in her dying declaration has stated that, the appellant at the relevant time, was working on the field as agricultural labour. Learned counsel for the appellant, therefore, contended that the contradictory version in respect of job the appellant was doing at the relevant time creates doubt about the prosecution case. It is further contended that prosecution has not examined the witness who had admitted deceased Vandana in the hospital. Similarly, neither the mother nor the brother of the deceased Vandana was examined by the prosecution though, at the time of occurrence, she was residing with them. It is further contended that prosecution has not examined the witness who had admitted deceased Vandana in the hospital. Similarly, neither the mother nor the brother of the deceased Vandana was examined by the prosecution though, at the time of occurrence, she was residing with them. It is, therefore, contended that suppression of these material facts creates doubt about authenticity of the prosecution case as well as evidence of dying declaration alleged to have been recorded by the Judicial Magistrate. Mr. Deshpande learned counsel for the appellant has contended that though the medical evidence of Dr. Swati (P.W.6) disclosed that deceased Vandana sustained 72% burn injuries, however, she has failed to opine as to whether the said injuries were sufficient in the ordinary course of nature to cause death. 8. Mr. V. M. Deshpande, learned counsel for the appellant, therefore, contended that the evidence of dying declaration; oral as well as written; not being free from suspicion cannot be sustained in law and is liable to be discarded. 9. Mr. Deshpande, learned counsel for the appellant alternatively contended that, in the instant case, Pandurang (father of deceased) (P.W.3) in his cross-examination has admitted that the appellant was insisting that his daughter - deceased Vandana should stay with him in a rented premises and should leave the house of her parents however, his daughter Vandana was reluctant to do so and continued to stay with him in his residential house. Mr. Deshpande, Adv. further contended that the appellant has two children which are young and in view of the above referred admission given by Wasudeo (P.W.3) in his cross-examination, it is evident that the appellant wanted that deceased Vandana should reside with him in his rented accommodation. It is further contended that, on the day of incident, appellant insisted that deceased Vandana should accompany him to his house. however, she refused to oblige him, hence, in a fit of anger and at the spur of moment, even if it is presumed that he poured kerosene on her person and set her on fire, even then the offence alleged to have been committed by the appellant will not be punishable u/s.302 and at the most the offence would be culpable homicide not amounting to murder and is punishable u/s.304 of the Indian Penal Code. 10. 10. The Additional Public Prosecutor, on the other hand, supported the impugned judgment of the trial Court and has contended that the evidence of dying declaration; oral as well as written recorded by the Magistrate is cogent and is also corroborated by the medical evidence. It is contended that deceased Vandana has specifically stated in her dying declaration (Exh.29) that since three days prior to the occurrence her husband was ill-treating her. The appellant was addicted to liquor. On the day of occurrence, the appellant beat her, poured kerosene on her person and set her on fire. The appellant after setting her on fire ran away from the spot of occurrence. It is contended that the dying declaration given by the deceased is corroborated by the evidence of Pandurang (P.W.3), to whom the deceased has given oral dying declaration, which is consistent with the dying declaration recorded by the Magistrate. The Additional Public Prosecutor further contended that the evidence of dying declaration is corroborated by the medical evidence and therefore, the trial Court was justified in convicting the accused for the offence of murder. 11. It is further contended that non-examination of doctor who has given Fitness Certificate does not render the dying declaration of deceased Vandana doubtful nor does it reduce its evidential value. In order to substantiate his contention, reliance is placed on the decision of the Supreme Court reported in 2007 ALL MR (Cri) 847 (S.C.), Mohanlal and Others. Vs. State of Haryana. The Additional Public Prosecutor has also relied on the decision of the Apex Court reported in 1999 Cr.L.J. 4582, Koli Chunilal Savji and another Vs. State of Gujarat. 12. We have considered the contentions canvassed by the respective counsel scrutinized the evidence on record and considered the decisions cited by the respective counsel. 13. The prosecution case rests on the dying declaration (Exh.29) given by the deceased Vandana and recorded by Wasudeo Deorao Mahore (P.W.4) (Special Judicial Magistrate), evidence of Pandurang (P.W.3), to whom the deceased gave oral dying declaration as well as evidence of Dr. Swati Patil (P.W.6). 14. In the instant case. the evidence of witness Wasudeo Mahore (P.W.4) shows that, on 23-6-2001, he was working as a Special Judicial Magistrate and had received requisition letter to record the dying declaration of deceased Vandana. Swati Patil (P.W.6). 14. In the instant case. the evidence of witness Wasudeo Mahore (P.W.4) shows that, on 23-6-2001, he was working as a Special Judicial Magistrate and had received requisition letter to record the dying declaration of deceased Vandana. He, therefore, visited Irwin hospital where Vandana was admitted and met the doctor who was on duty on that day. This witness thereafter gave memo (Exh.28) to the Medical Officer for examining deceased Vandana and for issuance of medical certificate about mental condition of deceased Vandana. This witness has proved the contents of dying declaration (Exh.29) recorded by him. It has come in the evidence of this witness that he introduced himself to the patient and told her the purpose of recording her dying declaration and recorded her dying declaration in question and answer form in her own words. This witness has further stated in his evidence that he read over the statement recorded by him to the deceased and she admitted correctness thereof. He has also obtained thumb impression of the deceased. It has come in the evidence of this witness that after recording of dying declaration he again requested the Medical Officer to certify as to whether the patient was conscious during and after recording of her statement. It has come in the testimony of this witness that the doctor cel1ified the same and put his signature. Careful scrutiny of the cross-examination of this witness would show that defence has not seriously disputed the fact of recording of dying declaration, which is apparent from the suggestion given to this witness (Wasudeo P.W.4) in his cross-examination. This witness has denied the suggestion that it took about 30 to 45 minutes to record the statement and volunteered that it was recorded within five minutes. It is, therefore, evident that the fact of recording the dying declaration by the Special Judicial Magistrate was not much in dispute. It was only the time required to record the dying declaration that was in dispute. It is no doubt true that the dying declaration is in question and answer form and there were 10 to 11 questions put to deceased Vandana and she gave answers to all of them, which were reduced in writing by the Executive Magistrate. It was only the time required to record the dying declaration that was in dispute. It is no doubt true that the dying declaration is in question and answer form and there were 10 to 11 questions put to deceased Vandana and she gave answers to all of them, which were reduced in writing by the Executive Magistrate. However it is not possible to say with accuracy and certainty time required to record such dying declaration and merely because the Executive Magistrate has stated in his cross-examination that it took 5 minutes, that by itself does not render the dying declaration either doubtful or untrustworthy, if it otherwise inspires confidence. 15. Perusal of the dying declaration would show that deceased Vandana has specifically disclosed to the Special Judicial Magistrate that since three days prior to the occurrence the appellant was ill-treating her (beating her). He was addicted to liquor. On the day of incident, he beat her severely, poured kerosene on her person and set her on fire. The evidence of Special Judicial Magistrate Wasudeo (P.WA), in our view, is cogent and shows that he has recorded the dying declaration as per the narration of deceased Vandana. Defence could not bring anything in the cross-examination of this witness in order to discredit the testimony of this witness. Even otherwise, there is no reason for the witness Wasudeo (Special Judicial Magistrate), who is an independent witness, to falsely implicate the appellant. The dying declaration recorded by the Magistrate, in our view, is cogent, truthful and trustworthy. Evidence of Pandurang (P.W.3) proves the oral dying declaration given to him by the deceased when he met her in the hospital. It has come in the examination-in chief of this witness that, on the next day of incident, he went to Irwin hospital, Amravati and met his daughter Vandana. He asked her about the incident. Deceased Vandana told him that accused insisted that she should return to his matrimonial home, however, she refused to do so and therefore, the appellant sprinkled kerosene on her person and set her on fire. She has also disclosed that the accused was addicted to liquor. He asked her about the incident. Deceased Vandana told him that accused insisted that she should return to his matrimonial home, however, she refused to do so and therefore, the appellant sprinkled kerosene on her person and set her on fire. She has also disclosed that the accused was addicted to liquor. The omissions in his police statement, in our view, are of minor nature and the contradictory version about the nature of job the appellant was doing at the relevant time also does not shatter the testimony of witness Pandurang (P.W.3) or credibility of the oral dying declaration given by deceased Vandana. Though deceased Vandana has stated in her dying declaration that the appellant was doing the work of agricultural labour and witness Pandurang has stated that appellant was rickshaw puller, that does not mean that either of the version is false. It is possible for the appellant to work as a agricultural labour and, at times and on occasions, when the work on the field was not available, to do the job of rickshaw puller. The discrepancy, if any, in this regard apart from not being material, the same is also not in respect of material particulars of the prosecution case and therefore, it does not adversely affect the testimony of witness Wasudeo (P.W.4) or credibility of dying declaration recorded by the Judicial Magistrate. The contention canvassed by the counsel for the appellant in this regard suffers from lack of merits and is rejected. 16. Similarly, it is no doubt true that the doctor who has issued certificate of fitness in respect of deceased Vandana before and after recording of her dying declaration is not examined. However, the substantive evidence of Special Judicial Magistrate clearly shows that, when he went to the hospital for recording the dying declaration of deceased Vandana, he met the Medical Officer who was on duty at the relevant time and gave memo (Exh.28) and requested the Medical Officer to examine the deceased and issue certificate as to whether she was mentally sound and fit to give dying declaration. Similarly, it has come in the evidence of the Special Judicial Magistrate that after recording of dying declaration he again requested the doctor to issue Fitness Certificate. Perusal of the requisition (Exh.28) shows that the Medical Officer examined deceased Vandana and found her fully conscious and fit to give dying declaration. Similarly, it has come in the evidence of the Special Judicial Magistrate that after recording of dying declaration he again requested the doctor to issue Fitness Certificate. Perusal of the requisition (Exh.28) shows that the Medical Officer examined deceased Vandana and found her fully conscious and fit to give dying declaration. There is an endorsement made by Medical Officer to that effect on the requisition (Exh.28) itself. Similarly, perusal of the dying declaration (Exh.29) shows that after recording of the dying declaration the Medical Officer again examined deceased and found her fully conscious during and after recording the dying declaration. The said endorsement is made on Exh.29. 17. The relevant observations made by the Apex Court in the case of Koli Chunilal Savji and another (cited supra), are in paragraph Nos.6, 7 and 8, which read thus: “6. In view of the rival submissions made at the Bar, two questions really arise for our consideration. (1) Whether the two dying declarations can be held to be true and voluntary and can be relied upon or can be excluded from consideration for the infirmities pointed out by Mr. Keshwani, appearing for the appellants. (2) Whether the High Court exceeded its jurisdiction in interfering with the order acquittal, recorded by the learned Sessions Judge.” “7. Coming to the first question, the answer to the same would depend upon the correctness of the submission of Mr. Keshwani, that in the absence of doctor while recording the dying declaration, the said declaration loses, its value and cannot be accepted. Mr. Keshwani in this connection relies upon the decision of this Court in the case of Maniram Vs. State of Madhya Pradesh, AIR 1994 SC 840 : (1993 AIR SCW 211 : 1994 Cri.L.J. 946). In the aforesaid case, no doubt this Court has held that when the declaring was in the hospital itself, it was the duty of the person who recorded the dying declaration to do so in the presence of the doctor and after duly being certified by the doctor that the declarant was conscious and in senses and was in a fit condition to make the declaration. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the Judgment of the High Court. In the said case the Court also thought it unsafe to rely upon the dying declaration on account of aforesaid infirmity and interfered with the Judgment of the High Court. But the aforesaid requirements are mere a rule of prudence and the ultimate test is whether the dying declaration can be held to be a truthful one and voluntarily given. It is no doubt true that before recording the declaration, the concerned officer must find that the declarant was in a fit condition to make the statement in question. In Ravi Chander Vs. State of Punjab, (1998)9 SCC 303 this Court has held that for not examining the doctor, the dying declaration recorded by the Executive Magistrate and the dying declaration orally made need not be doubted. The Court further observed that the Executive Magistrate is a disinterested witness and is a responsible officer and there is no circumstance or material on record to suspect that the Executive Magistrate had any animus against the accused or in any way interested in fabricating the dying declaration and, therefore, the question of genuineness of the dying declaration recorded by the Executive Magistrate to be doubted does not arise. In the case of Harjit Kaur Vs. State of Punjab (1994)4 Scale 447 , this Court has examined the same question and held: “ ........As regards the condition of Patminder Kaur, the witness has stated that he had first ascertained from the doctor whether she was in a fit condition to make a statement and obtained an endorsement to that effect. Merely because that endorsement was made not only the Dying declaration itself but on the application, that would not render the Dying Declaration suspicious in any manner." The observations of the Apex Court in para 8 read thus: “8. In view of the aforesaid decisions of this Court, we are unable to accept the submission of Mr. Keshwani that the two dying declarations cannot be relied upon as the doctor has not been examined and the doctor has not made any endorsement on the dying declaration. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. With regard to the condition of the deceased, the Magistrate who recorded the dying declaration has been examined as a witness. She has categorically stated in her evidence that as soon as she reached the hospital in the Surgical Ward of Dr. Shukla, she told the doctor on duty that she is required to take the statement of Dhanuben and she showed the doctor the Police yadi. The doctor then introduced her to Dhanuben and when she asked the doctor about the condition of Dhanuben, the said doctor categorically stated that Dhanuben was in a conscious condition. It further appears from her evidence that though there has been no endorsement on the dying declaration recorded by the Magistrate with regard to the condition of the patient but there has been an endorsement on Police yadi, indicating that Dhanuben was fully conscious in view of the aforesaid evidence of the Magistrate and in view of the endorsement of doctor on the Police yadi and no reason having been ascribed as to why the Magistrate would try to help the prosecution, we see no justification in the comments of Mr. Keshwani that the dying declaration should not be relied upon in the absence of the endorsement of the doctor thereon. In this particular case, the police also took the statement of the deceased which was treated as F.I.R. and the same can be treated as dying declaration. The two dying declarations made by the deceased at two different point of time to two different persons, corroborate each other and there is no inconsistency in those two declarations made. In this view of the matter, we have no hesitation to come to the conclusion that the two dying declarations made are truthful and voluntary ones and can be relied upon by the prosecution in bringing home the charge against the accused persons and the prosecution case must be held to have been established beyond reasonable doubt.” 18. The above referred observations made by the Apex Court make it implicitly clear that, if the declarant is in the hospital, it is necessary for a person who records his dying declaration in the presence of doctor and to record the same after due certification given by the doctor that the declarant was conscious and is in senses and is in a fit condition to make declaration. However, said requirement is a mere rule of prudence and ultimate test is whether the dying declaration can be held to be truthful and voluntary. 19. In the instant case, we have already observed that Wasudeo (P.W.4) (Special Judicial Magistrate) went to the hospital for recording the dying declaration of deceased Vandana. The Medical Officer on duty requested the said Officer to issue Fitness Certificate before and after recording of dying declaration; endorsement to that effect, in fact, has been made by the Medical Officer on Exhs.28 and 29 that the deceased was fully conscious and was in a fit condition to make dying declaration. Similarly, the deceased was also conscious during and after recording of dying declaration. In the instant case, there is nothing in the evidence of either Special Judicial Magistrate or any other witnesses to show that Wasudeo (P.W.4) had any kind of enmity with the appellant or vital interest in helping the prosecution. In absence thereof, the evidence of Special Judicial Magistrate can safely be accepted as true and failure to examine the Medical Officer, who has made endorsement about fitness of Vandana in the light of law laid down by the Apex Court, in our view, does not render the dying declaration given by the deceased Vandana either doubtful or untrustworthy. Similarly, the oral dying declaration given by Pandurang (P.W.3) is also consistent with the dying declaration recorded by the Magistrate and both these dying declarations are corroborated by the medical evidence and therefore, we have no hesitation to hold that the dying declaration given by the deceased is voluntary and is not the result of tutoring, prompting and the same is free from suspicion and also inspires confidence. 20. The next question is whether the offence committed by the appel1ant is murder and is punishable u/s.302 of the Indian Penal Code or u/s.304-I of the Indian Penal Code. 21. In the case in hand, the evidence of Pandurang (P.W.3) (father of deceased) shows that at the relevant time deceased was residing with her parents and the appel1ant did not like deceased residing at her parental house and was insisting that she should come and stay with him in his rented premises. Even on the day of incident, the appellant was insisting that the deceased should leave her parent's house and come with him. Even on the day of incident, the appellant was insisting that the deceased should leave her parent's house and come with him. However, when she refused to oblige him, he poured kerosene on her person and set her on fire. The dying declaration of deceased further shows that the appellant was ill-treating her since few days prior to the incident and even on the day of incident, he beat her and then poured kerosene on her person and set her on fire. It is, therefore, evident that the act of pouring kerosene on the person of deceased was done by the appellant undoubtedly with the intention of causing her bodily injury as the appellant knew would likely to cause death of deceased and therefore, the offence committed by the appel1ant is murder and fans within the ambit of provisions of Section 300 of the Indian Penal Code and is therefore, punishable u/s.302 of the Indian Penal Code. The contentions canvassed by Mr. V.M. Deshpande, counsel for the appellant in this regard suffers from lack of merits and therefore, is rejected. 22. For the reasons stated hereinabove, the Criminal Appeal is dismissed. The impugned judgment and order passed by the trial Court is hereby confirmed. Appeal dismissed.