JUDGMENT : ARUN MISHRA, J. 1. The appeal has been preferred by the accused appellant Dinesh aggrieved by his conviction under section 302, Indian Penal Code sentencing him for life imprisonment and fine of Rs. 5,000/- in default of payment of fine, he has to undergo S.I. for six months and also the conviction under section 307, Indian Penal Code sentencing him for 10 years' R.I. and fine of Rs. 5000/- in default of payment of fine, he has to undergo S.I. for six months. 2. The facts in short are that on 23-4-1997 the accused Dinesh poured Kerosene oil on his wife Farida and set her ablaze. Initially the offence under section 307 of Indian Penal Code had been registered. Farida died on 23-4-1997 at 3.50 PM in the District Hospital Betul. Investigation was made on the basis of intimation given by the Doctor, it was informed that Farida had sustained burn injuries due to stove. Police made investigation under section 174, Criminal Procedure Code. The statement of deceased Farida (Ex.P-12) had been recorded by Z.F. Ahmad (PW-14) and the statements of the parents of the deceased were also recorded by him. He submitted the statement of the deceased and statement of parents as per communication (Ex.P-11) to the concerned police station. Z.F. Ahmad (PW-14) had been asked by the Station Officer In-charge to make investigation under section 174, Criminal Procedure Code. On the basis of intimation, the case had been registered under section 307, Indian Penal Code, later on it was converted under section 302 of Indian Penal Code. The Inquest was prepared, as the house of the deceased was locked from outside, lock was broken, Panchanama (Ex.P-15) was drawn in that regard. At the place of incident smell of Kerosene oil was found, match box was seized as per seizure memo (Ex.P-15), spot map (Ex.P-1) and (Ex.P-16) were also drawn. The trial Court had framed charges under sections 307 and 302 of Indian Penal Code. 3. The accused abjured the guilt and contended that he had been falsely implicated in the case. 4. The prosecution has examined 14 witnesses. The trial Court has convicted the appellant as aforesaid, consequently the appeal has been preferred by the appellant. 5. Ms. Durgesh Gupta, learned counsel appearing on behalf of the appellant has submitted that dying declaration of the deceased could not be said to be reliable. 4. The prosecution has examined 14 witnesses. The trial Court has convicted the appellant as aforesaid, consequently the appeal has been preferred by the appellant. 5. Ms. Durgesh Gupta, learned counsel appearing on behalf of the appellant has submitted that dying declaration of the deceased could not be said to be reliable. Z.F. Ahmad (PW-14) was not authorized to record dying declaration, his authority in writing to record dying declaration has not been proved. In the dying declaration (Ex.P-12) the Doctor has not certified that deceased was in the fit state to give her statement. Time of recording the statement has also not been mentioned, thus no reliance could be placed by the trial Court on the dying declaration. Statement of parents Saeeda Bano (PW-1) and Sheikh Habib (PW-3) could not have been relied upon as to the oral dying declaration made by the deceased to them. She has further submitted that Doctor had been informed that burn was caused accidentally due to the stove while she was cooking the food. Most of the witnesses have not supported the prosecution case, consequently the accused ought to have been acquitted by giving benefit of doubt. 6. Shri T.K. Modh, learned Dy. AG appearing on behalf of State has submitted that no doubt about it that Doctor had sent the intimation (P-2) to the concerned police station but it was not based on the basis of information furnished by the deceased Farida. Even the name of the person who had disclosed that deceased caught fire due to stove, was not mentioned in the intimation by the Doctor. On the basis of intimation investigation was set in under section 174 of Criminal Procedure Code in the course of which not only statement of the deceased but the statement of Parents Saeeda (PW-1) and Sheikh Habib (PW-3) had been recorded by Shri Z.F. Ahmad (PW-14) on being authorized by Station Officer In-charge. Apart from that smell of kerosene was found on the body and hair of the deceased as stated by the Doctor V.K. Shrivastava (PW-5). In the post-mortem performed on 24-4-1997 cause of incident was mentioned that husband of the deceased had poured kerosene oil and set her ablaze, thus it could not be said to be a case subsequently manufactured. There was nothing to doubt the dying declaration (P-12). In the post-mortem performed on 24-4-1997 cause of incident was mentioned that husband of the deceased had poured kerosene oil and set her ablaze, thus it could not be said to be a case subsequently manufactured. There was nothing to doubt the dying declaration (P-12). It was not necessary to obtain the certification of Doctor particularly when it was the statement recorded under section 174, Criminal Procedure Code. Statement under section 161, Criminal Procedure Code had to be recorded after registration of the case as such certification of Doctor was not required to be obtained. Even otherwise the evidential value of the dying declaration (P-12) could not be set at naught merely by the fact that certification of the Doctor has not been obtained before recording the said statement. Not only recording of dying declaration has been proved but the dying declaration has been rightly found to be reliable by the trial Court. There was no reason to disbelieve it, consequently no case for interference was made out. He has also pointed out other circumstances on record pointing out the guilt of the accused that he was not present at the time of preparation of spot map. The lock of the house had to be broken. The conduct of the accused immediately after the incident also points out towards his guilt. 7. The incident has taken place at about 7 a.m. on 23-4-1997. Deceased Farida had sustained burn injuries in the incident, she was taken to the hospital. The Doctor had informed to the police station that it was informed that she has sustained burn injuries due to stove. She was admitted around 7.00 a.m. in the hospital on 23-4-1997, however, source of information has not been disclosed by the Doctor in the aforesaid intimation. He has not referred that it was Farida who has informed the aforesaid fact to the Doctor. When we consider statement of Dr. R.L. Rathore (PW-4) who had sent the information, in his statement he has not stated what was the basis of recording intimation who had informed him as to the cause of sustaining burn injuries by the deceased Farida, significantly he has not attributed the aforesaid statement mentioned in the intimation to the deceased. Police has made investigation under section 174 of Criminal Procedure Code. The Station Officer In-charge had sent Shri Z.F. Ahmad, Sub-Inspector to the hospital for making investigation. 8. Police has made investigation under section 174 of Criminal Procedure Code. The Station Officer In-charge had sent Shri Z.F. Ahmad, Sub-Inspector to the hospital for making investigation. 8. Shri Z.F. Ahmad (PW-14) on being asked by the Station Officer In-charge had visited the hospital and recorded the statement (P-12) of Farida. The submission made by Ms. Durgesh Gupta, learned counsel appearing on behalf of appellant that Z.F. Ahmad was not authorized to record statement is totally flimsy. At the relevant time Shri Z.F. Ahmad was posted as S.I. P.S. Kotwali where the marg intimation was recorded and ultimately offence was registered. He was not traffic in-charge at the relevant time. Thus he was authorized and on being asked by the Station Officer In-charge to make investigation to the marg, he had gone for investigation, thus dying declaration (Ex.P-12) could not be discarded on the aforesaid submission. 9. Dying declaration (P-12) had been recorded on 23-4-1997 in the hospital, it has been supported by yet another document (Ex.P-11) which was submitted by Shri Z.F. Ahmad to the police station after concluding the investigation. This information letter he had furnished on 23-4-1997 in that it was mentioned that statement of Farida, her parents had been recorded by him. Deceased Farida had disclosed that her husband had set her ablaze. With respect to the fact that whether the dying declaration had been recorded or not, on 23-4-1997 the aforesaid document was clinching, goes to show that dying declaration (Ex.P-12) has been recorded by Shri Z.F. Ahmad (PW-14), he has stated that when he has recorded the statement in the course of investigation under section 174 of Criminal Procedure Code, Farida was fit to make the statement. He had obtained thumb impression of deceased Farida on the statement as well as that of her father Sheikh Habib (PW-3). He has clearly stated in cross-examination Para-4 that he has recorded statement before FIR was registered. On the basis of his investigation, the offence has been registered by the police. In the FIR recorded by the police we find reference to the statement of deceased Farida that also indicate that statement (P-12) had been recorded on 23-4-1997 itself. Merely by the fact that the Doctor's certificate had not been obtained, the recording of statement itself could not have been doubted in the peculiar facts and circumstances of the instant case. In the FIR recorded by the police we find reference to the statement of deceased Farida that also indicate that statement (P-12) had been recorded on 23-4-1997 itself. Merely by the fact that the Doctor's certificate had not been obtained, the recording of statement itself could not have been doubted in the peculiar facts and circumstances of the instant case. At the time when statement was recorded offence had not been registered by the police, police was making investigation under section 174, Criminal Procedure Code as to the cause of death as unconfirmed intimation was sent by the Doctor. Apart from that merely absence of certification by the Doctor was not enough to disbelieve the recording of the statement in the instant case. The Apex Court in Laxman vs. State of Maharashtra, (2002) 6 SCC 710 has laid down that where the medical certificate indicated that the declarant was conscious, it was indeed a hyper-technical view to say that there was no certification as to fitness of state of mind of the declarant when the fitness of the declarant's state of mind was proved by the testimony of the Magistrate who had recorded the dying declaration. In the instant case also counsel for the appellant was not able to point out that deceased was in precarious condition. In the circumstances statement made by Shri Z.F. Ahmad that deceased was in fit mental state to make the statement when it was recorded was rightly found to be reliable. In Sohan Lal @ Sohan Singh and Others vs. State of Punjab, AIR 2003 SC 4466 , the Apex Court has laid down that in the absence of Doctor's certificate as to fitness of deponent, the declaration recorded by the Executive Magistrate testifying that deponent was in fit state of mind at time of making statement, no circumstance was brought on record to suspect his bona fides, there was nothing to show that he was interested in fabricating a case against accused, the absence of Doctor's certificate on declaration itself or failure to examine Doctor who had given the certificate, did not make declaration unreliable. When we consider statement of Doctor in the instant case Dr. When we consider statement of Doctor in the instant case Dr. R.L. Rathore (PW-4) has not stated that deceased was not in a fit state of mind to make any statement and Z.F. Ahmad has stated that he had obtained oral permission of the Doctor for recording his statement in the course of investigation under section 174 of Criminal Procedure Code. It was not a regular dying declaration that was recorded by Z.F. Ahmad, it was the statement recorded during the course of investigation under section 174, Criminal Procedure Code, thus absence of certification by the Doctor cause no dent into the factum of recording dying declaration. 10. Ms. Durgesh Gupta, learned counsel appearing on behalf of appellant has relied upon a decision of Apex Court in Panchdeo Singh vs. State of Bihar, (2002) 1 SCC 577 in which the prosecution was solely based on the dying declaration in the peculiar facts of the said case. It was opined that Doctor's certification regarding fit state of mind of deceased to make the declaration was essential. There were other circumstances and in the facts of the said case hence it was held that such certification was necessary. The facts were otherwise in the instant case. In the facts and circumstances of the case we do not find that absence of certification renders recording of statement doubtful. Counsel has relied upon another decision of Andhra Pradesh High Court in Bhasker vs. State of A.P. 2005 Cri. L.J. 48 in which in the facts of the case it was held that certificate of the Doctor that patient was conscious and in fit state of mind was considered to be necessary. But it depends upon case to case and the facts and circumstances brought on record. It could not be said to be rule of universal application. Sometimes it may be considered to be necessary but not in every case. In the instant case we are satisfied that statement (Ex.P-12) has been recorded by Z.F. Ahmad. 11. Ms. Gupta, learned counsel has also relied upon a decision of this Court rendered in Cr. A. No. 200/1997, Smt. Parvati Bai W/o Atma Ram vs. State of Madhya Pradesh decided on 15-2-2005 in which not only the dying declaration was found to be suspicious but it was not supported by circumstantial evidence. Presence of kerosene oil has not been recorded by the Doctor in the autopsy. A. No. 200/1997, Smt. Parvati Bai W/o Atma Ram vs. State of Madhya Pradesh decided on 15-2-2005 in which not only the dying declaration was found to be suspicious but it was not supported by circumstantial evidence. Presence of kerosene oil has not been recorded by the Doctor in the autopsy. However, in the instant case in the autopsy report (Ex.P-4) it was clearly mentioned by the Doctor that there was smell of kerosene oil on various parts of the body. Thus circumstances, post-mortem report and nature of burn injuries indicate that it was not caused accidentally, thus aforesaid decision has no application in the instant case. 12. Coming to the reliability of facts mentioned in the dying declaration. In order to consider reliability of dying declaration that husband poured kerosene oil on the deceased and set her ablaze. We have to consider the facts and circumstances projected in the instant case. We find on record material circumstances pointing out that it was not the case of accidental burn caused by the stove but kerosene oil was poured, as smell was found on the various parts of the body of the deceased i.e. hair, waist etc. No cooked or half cooked material was seized on the spot. Shri V.K. Shrivastava (PW-5) has stated that he has performed autopsy and found 55% burn caused before death. There was smell of kerosene oil in the hair, face, neck, chest, abdominal and thigh region. Presence of smell of kerosene oil indicates that kerosene oil was poured on the deceased and she was set ablaze, that is how presence of kerosene on the entire body could be explained. When we consider spot map (Ex.P-1) kerosene container was found and also half burnt match stick, house was found to be locked from out side as husband was not available in the house after the incident. Whereas accused should have been in the house in case he was not guilty. Whatever that may be, in the post-mortem report (P-5) after the investigation has been made it was mentioned as information as to cause of incident on the next very day i.e. on 24-4-1997 that husband had caused death by setting her ablaze. Thus it could not be said to be an afterthought and concocted case beside that we find that dying declaration has been supported by parents of the deceased. Thus it could not be said to be an afterthought and concocted case beside that we find that dying declaration has been supported by parents of the deceased. Sheikh Habib (PW-3) has clearly stated in Para-9 of his deposition that in the hospital his statement and statement of his daughter were recorded beside that deceased had made dying declaration to him that her husband gave beating to her and thereafter, poured kerosene oil on her and set her ablaze. She was brought by her neighbours to the hospital and the accused had gone away after setting her ablaze after locking the house from the outside. Similar was the statement of Saeeda Bano (PW-1) mother of the deceased, which she has stated in Para-2 of her statement. Thus not only deceased had made recorded dying declaration (P-12) to Z.F. Ahmad but also made oral dying declaration to her parents, that has also been found to be reliable and worthy of credence. Nothing was brought out in the statement of Sheikh Habib and Saeeda Bano so as to discard their evidence. Merely by the fact that they were parents their testimony could not have been discarded as submitted by Ms. Durgesh Gupta, we find no merit in the submission. The statement of Kamla Bai, neighbour could not be relied upon as she had resiled from the earlier version and has been declared hostile. Dr. R.L. Rathore (PW-4) has sent information (P-4) that was quite vague as in the information source of information had not been mentioned by the Doctor, thus it was also not reliable. As such no dent was caused to the veracity of dying declaration of the deceased made to her parents as well as to Z.F. Ahmad. It was not a case of accidental burn as tried to be suggested by Saroj (PW-6) who has been declared hostile. Sheikh Rafique (PW-8) has stated that he has been informed by Saeeda Bano that accused Dinesh had set the deceased ablaze but this part of statement is based on hearsay. However, there was sufficient evidence so as to record the conviction. Seizure memo and spot map has been proved by M.R. Kumre (PW-10). 13. We set aside the conviction and sentence imposed by the trial Court under section 307 of Indian Penal Code. However, there was sufficient evidence so as to record the conviction. Seizure memo and spot map has been proved by M.R. Kumre (PW-10). 13. We set aside the conviction and sentence imposed by the trial Court under section 307 of Indian Penal Code. It was not proper for the trial Court once case was converted into section 302 of Indian Penal Code on the death of Farida to frame the charges under section 307 of Indian Penal Code much less to convict the appellant and sentence him additionally under section 307 of Indian Penal Code. The trial Judge to be careful in future. 14. Consequently we find no merit in this appeal same is hereby dismissed. Conviction and sentence of the accused is hereby affirmed.