JUDGMENT [Per : Hon’ble Prafulla C. Pant, J.] This appeal, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 12.11.1992, passed by IV Additional Sessions judge, Nainital, in Sessions Trial no. 175 of 1991, whereby accused/appellants Nanhey and Faruq are convicted under Section 302 read with Section 34 of Indian Penal Code, 1860 (hereinafter referred as I.P.C.), and each one of them is sentenced to undergo imprisonment for life and also to pay fine of Rs. 500/-. 2. Heard learned counsel for the parties and perused the lower court record. 3. Prosecution story in brief is that on 21.03.1990 at about 9 P.M. in Village Bara within the limits of Police Station Kichha (now part of district Udham Singh Nagar), accused/appellants Nanhey and Faruq with common intention set the house of deceased Sunder Lal on fire after pouring kerosene oil with intention to commit murder of Sunder Lal, who was inside the house. On that very day i.e. 21.03.1990, at about 11.30 P.M., complainant Margub Ahmad (P.W.1) along with other villagers took Sunder Lal (deceased) with burn injuries in the upgraded Primary health Centre, Kichha, where he was admitted. Dr. K.P.S. Chauhan (P.W.6), who examined the injuries on the person of Sunder Lal, informed immediately to the Police with the request that the Dying Declaration of the injured be recorded as he had 90% burn injuries. After making necessary entry in the general diary at Serial No. 53, Sub Inspector B.D. Sharma (P.W.9) went to Tehsildar Kichha requesting him to record the Dying Declaration of Sunder Lal. On this, Sri B.L. Yadav, Tehsildar (P.W.3) at about 00.30 hours reached in the Hospital and after obtaining a certificate from Dr. K.P.S. Chauhan, Medical Officer, the Tehsildar recorded Dying Declaration (Ext. A-3) of Sunder Lal, who made a statement that accused/appellants Nanhey and Faruq, before the incident asked him (Sunder Lal) to accompany them to commit theft. It is further stated by the deceased that the three were friends and one Omkar was also there. He further told the Magistrate (Tehsildar) that they (accused and deceased) had drinks before he refused Nanhey and Faruq to accompany them in commission of theft. It is further stated by the deceased that the three were friends and one Omkar was also there. He further told the Magistrate (Tehsildar) that they (accused and deceased) had drinks before he refused Nanhey and Faruq to accompany them in commission of theft. The refusal on the part of deceased enraged the two accused/appellants Nanhey and Faruq, who took the kerosene oil from the house of Sunder Lal, where they were sitting, and poured the same on Sunder Lal and set him on fire. Omkar tried to save Sunder Lal, but to no avail. After making said statement Sunder Lal succumbed to the burn injuries in the wee hours on 22.03.1990. Thereafter, Margub Ahmad (P.W.1) lodged the First Information Report (Ext. A-1) with the Police Station, Kichha. In the First Information Report complainant has mentioned that when he came to know in the village that Sunder Lal’s house has been set on fire, he rushed to the spot and saw Sunder Lal lying with burn injuries in his courtyard. The contents as mentioned above in the dying declaration were disclosed by the deceased to the complainant also. Whereafter, the injured was taken to the Hospital. On the basis of the First Information Report, Crime no. 219 of 1990 was registered against accused/appellants Nanhey and Faruq, relating to offence punishable under Section 304 I.P.C. and the same was investigated by Sub Inspector Vijendra Sharma (P.W.11). The Investigating Officer took the dead body of Sunder Lal in his possession from the Hospital and prepared inquest report (Ext. A-2) and other necessary papers – i.e. Police Form No. 33 (Ext. A-14), sketch of the dead body (Ext. A-15), Police Form No. 13 (Ext. A-16), letter to Chief Medical Officer (Ext. A-17) and sample seal (Ext. A-18). The dead body was sent for postmortem examination in sealed cover. On 22.03.1990, at about 4 P.M. Dr. Virendra Kumar Dixit (P.W.4) conducted the postmortem examination and prepared autopsy report (Ext. A-6), in which he mentioned that extensive burn injuries led to shock and death. After interrogating the witnesses and on completion of investigation the Investigating Officer submitted charge sheet (Ext. A-21) against both the accused Nanhey and Faruq for their trial in respect of offence punishable under Section 304 I.P.C. 4. A-6), in which he mentioned that extensive burn injuries led to shock and death. After interrogating the witnesses and on completion of investigation the Investigating Officer submitted charge sheet (Ext. A-21) against both the accused Nanhey and Faruq for their trial in respect of offence punishable under Section 304 I.P.C. 4. The Magistrate on receipt of the charge sheet, after giving necessary copies to the accused, as required under Section 207 of Cr.P.C., appears to have committed the case to the court of Sessions. Learned Sessions Judge, Nainital, transferred the case to the court of IV Additional Sessions Judge, Nainital. The said trial court, on 05.09.1991, after hearing the parties, framed charge of offence punishable under Section 302 read with Section 34 I.P.C. against both the accused Nanhey and Faruq. Both of them pleaded not guilty and claimed to be tried. On this prosecution got examined P.W.1 Margub Ahmad, complainant, P.W.2 Salig Ram, neighbour of the deceased, P.W.3 B.L. Yadav, Tehsildar, who recorded the Dying Declaration, P.W.4 Dr. Virendra Kumar Dixit, who conducted postmortem examination on the dead body of Sunder Lal, P.W.5 K.N. Joshi, who brought medico legal register from the Hospital, P.W.6 Dr. K.P.S. Chauhan, who recorded the injuries on the person of Sunder Lal (deceased) at the time of his admission in the hospital and certified the mental condition of the deceased at the time of recording of Dying Declaration, P.W.7 Devi Das, witness of recovery of the kerosene jerkin from the spot, P.W.8 Gopal Dutt Gururani, who prepared the check report (Ext. A-11) of the First Information Report and made entry in the general diary relating thereto, P.W.9 Sub Inspector B.D. Sharma, who prepared the inquest report of the dead body, P.W.10 Omkar (declared hostile), P.W.11 Sub Inspector Vijendra Sharma, Investigating Officer and P.W.12 constable Viresh Dutt Tripathi, who proved that Bed Head Ticket of the deceased has been lost. The oral and documentary evidence was put to the accused/appellants Nanhey and Faruq in reply to which they alleged the same to be false and pleaded that they were falsely implicated. However, no evidence in defence was adduced on behalf of the accused. The oral and documentary evidence was put to the accused/appellants Nanhey and Faruq in reply to which they alleged the same to be false and pleaded that they were falsely implicated. However, no evidence in defence was adduced on behalf of the accused. After hearing the parties, the trial court found both the accused Nanhey and Faruq guilty of charge of offence punishable under Section 302 read with Section 34 I.P.C. and thereafter parties were heard on sentence and each one of the convicts is sentenced to imprisonment for life and also to pay fine of Rs. 500/-. In default of payment of fine the defaulter was directed to undergo imprisonment for three months. Aggrieved by said judgment and order dated 12.11.1992, passed by IV Additional Sessions Judge, Nainital, in Sessions Trial No. 175 of 1991, this appeal was filed by the convicts before Allahabad High Court on 07.12.1992, where it was admitted on 08.12.1992. The appeal is received by this Court under Section 35 of U.P. Reorganisation Act, 2000, for its disposal. (During the pendency of this appeal, appellant no. 2 Faruq died and appeal filed by him stood abated as is apparent from this Court’s order recorded in the order sheet on 31.07.2004). 5. Before further discussions, it is just and proper to mention here the burn injuries found on the person of the deceased at the time he was admitted in the Primary Health Centre, Kichha. From the statement of P.W.6 K.P.S. Chauhan read with the copy of injury report (Ext. A-7) it is established on record that Sunder Lal had 90% dry burn injuries by kerosene oil found at the time he was admitted in the hospital, which are being reproduced below :- (i) Superficial dry burn whole front and back right arm. (ii) Superficial dry burn whole front and back right thigh. (iii) Superficial dry burn whole front and back left thigh. (iv) Superficial dry burn whole genital organ. (v) Superficial dry burn whole front and back right leg up to foot. (vi) Superficial dry burn whole front and back left leg up to foot. The aforementioned injuries recorded at the time of admission of the deceased in the Hospital get corroborated from the ante mortem injuries mentioned in the postmortem examination report (Ext. A-6), prepared by P.W.4 Dr. Virendra Kumar Dixit. (vi) Superficial dry burn whole front and back left leg up to foot. The aforementioned injuries recorded at the time of admission of the deceased in the Hospital get corroborated from the ante mortem injuries mentioned in the postmortem examination report (Ext. A-6), prepared by P.W.4 Dr. Virendra Kumar Dixit. The autopsy report shows that there were extensive IInd and IIIrd degree ante mortem burn injuries present all over the body except lower part of legs and feet where line of redness was present. On internal examination of the dead body Dr. Virendra Kumar Dixit (P.W.4) found membranes congested, brain pale, pleura pale, larynx congested. P.W.3 Dr. Virendra Kumar Dixit in his examination before the court stated that the cause of death of the deceased was shock due to burn injuries. From the above evidence it is clearly proved on record that the deceased (Sunder Lal) has died homicidal death due to ante mortem burn injuries. Now the question is whether the accused/appellant Nanhey accompanied with Faruq has caused the injuries with intention to commit murder of the deceased or not. 6. The most important piece of evidence on record produced by the prosecution is the Dying Declaration (Ext. A-3) given by the deceased before his death to P.W.3 B.L. Yadav, Tehsildar. P.W.3 B.L. Yadav, Tehsildar, has stated on oath that in the intervening night of 21st/22nd of March, 1990 at about 00.30 hours he recorded the Dying Declaration of Sunder Lal after getting satisfied as to his mental condition from Dr. K.P.S. Chauhan, who certified that the deceased was in a fit state of mind to make the statement. This witness has proved the Dying Declaration (Ext. A-3) recorded by him on which according to this witness he got the thumb impression taken from Sunder Lal after the statement was recorded. It is just and proper to reproduce the Dying Declaration made by the deceased to P.W.3 B.L. Yadav, Tehsildar in the 00.30 hours in the intervening night of 21st/22nd of March, 1990. A-3) recorded by him on which according to this witness he got the thumb impression taken from Sunder Lal after the statement was recorded. It is just and proper to reproduce the Dying Declaration made by the deceased to P.W.3 B.L. Yadav, Tehsildar in the 00.30 hours in the intervening night of 21st/22nd of March, 1990. The same is being reproduced below :- ß..........Qk#[k o uUgs fuñ cjk o cjh ds jgus okys gSa Qk#[k ds cki dk uke ugha ekywe uUgs ds cki dk uke gjn;ky gSA us tyk;k Fkk muds lkFk >xM+k Fkk os eq>s pksjh djus tkus ds fy, dg jgs Fks eSaus euk dj fn;k rks mUgksaus dgk py ugha rks tyk nsaxs vkSj mUgksaus eq>s idM+ dj tyk fn;k Qk#[k us rsy Mkyk rFkk uUgs us ekfpl tykbZ esjs ?kj esa fifi;k j[kh Fkh mlls feêh rsy fy;k Fkk rhljk vkneh vksadkj fuñ cjk Fkk og cpkrk jgkA og ckn esa vk;k FkkA eSaus vkokt yxkbZ rks Qk#[k us lhus ij reapk Vsd fn;kA Mj dj eSaus vkokt ugha yxkbZ geus esjs ?kj cSB “kjkc ih Fkh “kjkc uUgs o vksadkj yk;k FkkA eSa igys muds ?kj tkdj cjk esa “kjkc ihrk jgrk FkkA fQj crk;k fd cjk tkdj ugha os gekjs ?kj gh vkdj ihrs Fks igys nks ckj ih Fkh nksLrkuk ds dkj.k vkrs Fks vkt >xM+k gqvk os dg jgs Fks fd gekjs lkFk py pksjh djus eSaus dgk ugha tkÅ¡xk blh ckr ij >xM+k gqvkÞ From the above Dying Declaration it is clear that deceased has made a categorical statement in clear terms that accused/appellants Nanhey along with Faruq, after the deceased refused to accompany them to commit theft poured kerosene oil on him and set the deceased on fire. 7. Learned counsel for the appellant Nanhey argued that though the Medical Officer has certified the mental condition of the deceased before the Dying Declaration was recorded, but he has not certified the same at the end of the Dying Declaration. In this connection he referred to the case of Ramilaben Hasmukhbhai Khristi and Anr. Vs. State of Gujarat, 2002 SAR (Criminal) 691. Had there been no statement from P.W.6 Dr. K.P.S. Chauhan on the record we could have accepted the submission of learned counsel for the appellant but the statement of P.W.6 Dr. In this connection he referred to the case of Ramilaben Hasmukhbhai Khristi and Anr. Vs. State of Gujarat, 2002 SAR (Criminal) 691. Had there been no statement from P.W.6 Dr. K.P.S. Chauhan on the record we could have accepted the submission of learned counsel for the appellant but the statement of P.W.6 Dr. K.P.S. Chauhan shows that the deceased was in a fit state of mind to make the Dying Declaration at the time the same was recorded by B.L. Yadav, Tehsildar. P.W.3 B.L. Yadav, Tehsildar, has stated on oath that the deceased was in a fit state of mind to make the statement and to this effect he took the certificate from the Medical officer before the Dying Declaration was recorded. In our opinion, where the Dying Declaration is a short one as quoted above, after certificate is given by Doctor at the time of starting of recording of the Dying Declaration that the deceased is in a fit condition to make the statement, it cannot be presumed that soon thereafter at the close of the Dying Declaration he was not in a fit state of mind to make the statement. 8. Next contention advanced on behalf of appellant is that the Dying Declaration of the deceased is doubtful as crime number is mentioned in the Ext. A-3 P.W.3 B.L. Yadav, Tehsildar, has explained in his cross-examination that after the crime number was registered at the Police Station, the same was mentioned by him in the Dying Declaration at the later stage, before the Dying Declaration was sent to the Chief Judicial Magistrate. He has further clarified that the Dying Declaration was not sealed in the hospital itself and it was sealed later on. Before appreciating the mentioning of crime number in the Dying Declaration it is pertinent to mention here that the Dying Declaration is recorded in the night at 00.30 hours on 22.03.1990. Death has occurred at 4 A.M. on the same day and First Information Report has been got lodged at about 8 A.M. on the same day. After recording of the Dying Declaration the same was sealed by Tehsildar after few hours and before sealing he made the entry of crime number. There is no illegality in making the endorsement of crime number on the side of the Dying Declaration to show as to which case the Dying Declaration relates. After recording of the Dying Declaration the same was sealed by Tehsildar after few hours and before sealing he made the entry of crime number. There is no illegality in making the endorsement of crime number on the side of the Dying Declaration to show as to which case the Dying Declaration relates. It is also relevant to mention here that P.W.3 B.L. Yadav has clearly stated in his examination that the Dying Declaration, after its recording remained with him throughout till it was sealed and sent to the Chief Judicial Magistrate. In the circumstances, we do not see any reason to doubt to the truthfulness of the contents of the Dying Declaration. 9. Sri J.S. Virk, learned counsel for the appellant submitted before us that Bed Head Ticket was not produced by the prosecution and on its basis it is argued that where the Dying Declaration is not corroborated from other evidence, it creates a reasonable doubt in the prosecution story regarding the manner in which the accused is said to have committed the crime. Had there been no explanation for non-production of the Bed Head Ticket from the Hospital it could have been said that such lapse creates a doubt in the prosecution story. But P.W.12 Constable Viresh Dutt Tripathi, has stated that Bed Head Ticket, which was collected by the Investigating Officer was sent to Allahabad high Court in the year 1992 at the time of hearing of the bail application of the accused appellants Nanhey and same was not received back from the office of the Government Advocate of Allahabad High Court. He has proved in this connection the entry in the general diary made relating to sending of the Bed Head Ticket to Allahabad. We are satisfied with the explanation given by the prosecution and concur with the trial court that mere non-production of Bed Head Ticket by prosecution, in the circumstances, does not create any doubt in the prosecution story. 10. Lastly it is argued on behalf of the appellant that in the injury report (Ext.A-7) ‘accidental injury’ is mentioned as such it cannot be said that the injuries were caused by accused/appellant Nanhey. It is not clear that at whose instance the expression ‘accidental injury’ was recorded. The defence should have asked question to that effect to P.W.6 Dr. 10. Lastly it is argued on behalf of the appellant that in the injury report (Ext.A-7) ‘accidental injury’ is mentioned as such it cannot be said that the injuries were caused by accused/appellant Nanhey. It is not clear that at whose instance the expression ‘accidental injury’ was recorded. The defence should have asked question to that effect to P.W.6 Dr. K.P.S. Chauhan who could have explained that how expression ‘accidental injury’ was mentioned in the report (Ext.A-7). From the record what appears is that Sunder Lal was brought in injured condition by Devi Das (as mentioned in injury report itself). It is quite possible that the person who brought the patient in the Hospital might have mentioned said fact but it does not create any reasonable doubt in the prosecution story as to the contents stated by the deceased in his Dying Declaration. We feel it necessary to mention here that while making the Dying Declaration the deceased has clearly stated that accused Nanhey and Faruq are his friends. He has further stated that he had drinks with them. He further stated that for the reason that he refused to accompany them to commit theft the two poured kerosene on him and set him on fire. The natural narration of the incident made by the deceased leaves no room of reasonable doubt as to the commission of crime on the part of accused appellant Nanhey. 11. For the reasons as discussed above, we do not see any sufficient reason to interfere with the impugned judgment and order passed by the trial court, challenged before us. The appeal is liable to be dismissed. The same is dismissed. The conviction and sentence recorded against accused/appellant Nanhey by the trial court, is affirmed. The Registry is directed to send the lower court record back to the trial court to make the accused/appellant Nanhey, serve out the sentence awarded against him. (As far as appellant no.2 Faruq is concerned due to his death during the pendency of appeal, appeal on his behalf has already stood abated).