JUDGMENT : J.R. Vora, J. This Appeal is preferred by the appellant under Section 374 of the Code of Criminal Procedure, 1973, against the judgment and order delivered by Sessions Judge, Jamnagar, on 30th of September, 1999, in Sessions Case No. 35 of 1999, whereby the present appellant, being accused of the said Sessions Case, came to be convicted by learned Sessions Judge, Jamnagar, for the offences punishable under Section 302 of the Indian Penal Code and was sentenced to undergo imprisonment for life and to pay fine of Rs. 500/ in default to undergo simple imprisonment of six months. 2. As per the brief facts of the prosecution case, deceased Roshanben, daughter of Abhu Kasam Jadeja of village Bet, had married to Noor Mohmad Adam Chamadiya, the elder brother of appellant, about five months prior to the date of incident. The family was residing jointly at village Balapar Bet, Taluka Okha. The family members were fatherinlaw of the deceased Adam Yusuf; motherinlaw of the deceased Aminaben and two brothers of husband appellant and other Sattar Adam. Havaben, sister of the husband, also was staying in this family, who was aged about 12 years. Other two sisters Memuba, aged about 8 years and Kulsumben, were also staying with them. The incident occurred on or about 4th of December, 1998 at about 11.00 a.m. all the other family members, including husband of the deceased, were away from the house and deceased Roshanben, Havaben Adhambhai, aged about 12 years and appellant aged about 18 to 19 years, at that time, were in the house. Thereafter, Havaben Adhambhai went to fetch water from the well of the village. Deceased Roshanben was cooking in the kitchen of the house, which was made over by gunny bags partition. When the appellant and deceased Roshanben were alone in the house, the appellant started bantering, gibeying and jesting with deceased Roshanben. Roshanben prevented and told the appellant not to jester, and upon that, the appellant caught hold of the 'odhani' of the deceased (a part of Punjabi dress) to wear on shoulder by females, gagged her on face and on her eyes and dragged her in the room, poured some liquid upon her and ignited her. She started burning and started shouting. In the meantime, Havaben Adhambhai, returned after fetching water and she tried to extinguish the fire by pouring water and through quilt. She started burning and started shouting. In the meantime, Havaben Adhambhai, returned after fetching water and she tried to extinguish the fire by pouring water and through quilt. After some times, Noor Mohmad Adam , husband of Roshanben and cousin brother Haji Noor Mohmad and her aunt Sarifaben came and deceased stated to them what had taken place. Her husband Noor Mohmad Adam shifted her to Primary Health Center of Village Bet where Defence Witness No. 1 Dr. Jayantilal Gokalbhai Pagda, treated her and found that she was semiconscious and was in shock. According to this Doctor, Roshanben had 90% burns and, therefore, she was referred to Mithapur Tata Hospital where she was treated by PW2 Narbheram Hiradas Gondaliya at about 2.30 p.m. He found that Roshanben had 80% burn injuries and she was conscious. He informed Mithapur Police Station and when the patient was treated, the police came in the hospital because message of the Doctor had received by Mithapur Outpost Police Station. ASI PW15 Pratapsinh Kodarji Jadav, thought it fit, to call one Jarinaben, a social worker to accompany him at the Hospital, as according to the message of Dr. Narbheram Hiradas Gondaliya, Roshanben was admitted for burn injuries. PW15 Prapatsinh Kodarji Jadav, found that Roshanben was conscious and he obtained opinion of Dr. Gondaliya and recorded the complaint of Roshanben, which is at Exhibit44 at about 5.15 p.m in the presence of Jarinaben, a social worker and thereafter in the said complaint, for the offence punishable under Section 307 of the Indian Penal Code was initially recorded and thumb impression of the deceased was taken on that and signature of Jarinaben was also obtained. In the said complaint, deceased stated that when appellant and she were alone in the house, the appellant tried to play jest with her. On preventing, she was gagged by 'odhani', her eyes and her whole face were tied, and after pouring kerosene, she was ignited by the appellant. The complaint was sent to Outpost of Mithapur Police Station and was registered by PSO Salamsinh Kanubha Jadeja PW12. ASI Pratapsinh Kodarji Jadav, PW15, then arranged to record dying declaration of the deceased and sent wireless message at Dwarka to concerned Executive Magistrate, PW3 Mansukhbhai Madhabhai Makwana. The complaint was sent to Outpost of Mithapur Police Station and was registered by PSO Salamsinh Kanubha Jadeja PW12. ASI Pratapsinh Kodarji Jadav, PW15, then arranged to record dying declaration of the deceased and sent wireless message at Dwarka to concerned Executive Magistrate, PW3 Mansukhbhai Madhabhai Makwana. On receiving wireless message, PW3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, reached at the hospital at about 17.00 hours, obtained opinion of the Doctor and found that the deceased was conscious and recorded the dying declaration of the deceased after asking her questions. That dying declaration is at Exhibit18 wherein he obtained the right hand thumb impression of the deceased and he also signed the said dying declaration. Dying declaration was started by the Executive Magistrate to record from 17.30 hours and was over by 17.40 hours. It appears that having regard to the deteriorating health of the deceased, Dr. Narbheram Hiradas Gondaliya, referred the patient to Irwin Hospital at Jamnagar. She was shifted to the charge of Dr. Ambassan of Irwin Hospital at Jamnagar, who in turn, informed the police i.e. PW14, hospital duty Head Constable Dilipsinh Bhimsinh Jadeja. Patient Roshan was conscious and Head Constable Dilipsinh Bhimsinh Jadeja of Jamnagar also inquired about the incident and deceased Roshanben narrated the same story and PW14 Dilipsinh Bhimsinh Jadeja inquired whether her dying declaration was recorded or not and that the crime was registered or not. Head Constable Dilipsinh Bhimsinh Jadeja was informed that dying declaration was recorded and the crime was also registered. Roshanben during treatment died in Irwin Hospital on 5th of December, 1998 at about 17.00 hours and, therefore, the crime was registered under Section 302 of the Indian Penal Code. Investigation was handed over to PW16 Narendrasinh Bahadursinh Jadeja, PSI of Okha Police Station. Inquest panchnama was drawn at Jamnagar by Jamnagar Police Station. After due investigation, a charge sheet came to be filed against the appellant in the Court of learned Judicial Magistrate, First Class at Dwaraka, and the case was committed to the Court of Sessions. 3. On 28th of July, 1999, the learned Sessions Judge, Jamnagar, framed charge against the appellant vide Exhibit5 for the offence punishable under Section 302 of the Indian Penal Code, to which the accused pleaded not guilty. Prosecution, therefore, examined as many as 16 witnesses and produced documentary evidence on record. 3. On 28th of July, 1999, the learned Sessions Judge, Jamnagar, framed charge against the appellant vide Exhibit5 for the offence punishable under Section 302 of the Indian Penal Code, to which the accused pleaded not guilty. Prosecution, therefore, examined as many as 16 witnesses and produced documentary evidence on record. Thereafter the learned Sessions Judge brought incriminating circumstances appearing in the evidence to the notice of the accused and the defence of the accused was of total denial. The defence thereafter examined Defence Witness at Exhibit58 Dr. Jayantilal Gokalbhai Pagda, who had examined deceased Roshan, first in point of time, at Primary Health Center of village Bet. 4. Thereafter, the learned Sessions Judge heard the prosecution as well as defence and came to the above conclusion to convict and sentence the accused appellant and, hence, this Appeal. 5. The prosecution examined the following witnesses and produced following documentary evidence to prove its case. Prosecution Witnesses : PW-1 Dr. Bipin Jivanbhai Patel Exh.12 PW-2 Narbheram Hiradas Gondaliya Exh.14 PW-3 Mansukhbhai Madhabhai Makwana Exh.17 PW-4 Havaben Adhambhai Exh.19 PW-5 Jarinaben Ibrahim Exh.20 PW-6 Manubhai Poppatbhai Gohil Exh.21 PW-7 Haji Noormohamad Exh.23 PW-8 Rajendrasinh Khodaji Exh.24 PW-9 Tarunkumar Ramaniklal Exh.27 PW-10 Vinodbhai Harilal Exh.29 PW-11 Ramjibhai Tapubhai Exh.30 PW-12 Salamsinh Jetabhai Chauhan Exh.34 PW-13 Parakaramsinh Kanubha Jadeja Exh.37 PW-14 Dilipsinh Bhimsinh Jadeja Exh.41 PW-15 Prapatsinh Kodarji Jadav Exh.43 PW-16 Narendrasinh Bahadursinh Jadeja Exh.46 Documentary Evidence : 1 Postmortem Report Exh. 13 2 Certificate of Dr. Narbheram Hiradas Gondaliya of Tata Hospital at Mithapur. Exh.15 3 Dying Declaration Exh. 18 4 Inquest panchnama of deceased Exh. 26 5 Panchnama of scene of offence Exh. 28 6 Arrest panchnama of the accused and seizure of clothes panchnama of the accused Exh. 30 1 Postmortem Report Exh. 13 4 Message forwarded to Executive Magistrate to record DD Exh. 32 7 Station Diary Entry of Okha Police Station Exh. 35 8 Entry of M.L.C. Register of Irwin Hospital, Jamnagar Exh. 42 9 Complaint filed by the deceased Exh. 44 10 Yadi to register the crime Exh. 45 11 Map of scene of offence Exh. 48 12 FSL opinion Exh. 52 13 Medical Certificate issued by Dr. Jayantilal Gokalbhai Pagda Exh. 56 14 Case papers produced by the prosecution Exh.59 6. Necessary it is to note the gist of the prosecution case and the evidence, before the same is reappreciated in this Appeal. 7. PW1 Dr. 45 11 Map of scene of offence Exh. 48 12 FSL opinion Exh. 52 13 Medical Certificate issued by Dr. Jayantilal Gokalbhai Pagda Exh. 56 14 Case papers produced by the prosecution Exh.59 6. Necessary it is to note the gist of the prosecution case and the evidence, before the same is reappreciated in this Appeal. 7. PW1 Dr. Bipin Jivanbhai Patel, examined at Exhibit12, of M.P. Shah Medical College and in panel with Dr. B.D. Gupta, he conducted postmortem on dead body on 6.12.1998. He noted the physical condition of the dead body and stated that there were ink impression on left hand thumb of the deceased. During postmortem examination, Dr. Bipin Jivanbhai Patel found that body had 80 to 90% dermo epidermal burn injuries. He has noted this burn injuries in column No.17 of the Postmortem Note, and according to him, there were 80 to 90% burn injuries. Those were ante mortem and cause of death was due to shock on account of extensive burn injuries. The witness has been crossexamined by the defence. He denied that the burns were more than 90% and stated that if somebody is burnt to that extent, he would face difficulty in speaking. There were soot particles on the mouth and possibility of entering soot particles in trachea should not be over ruled. 8. PW2 Dr. Narbheram Hiradas Gondaliya, examined at Exhibit14, was the then Doctor of Tata Hospital, Mithapur. On 4th of December,1998, at about 2.30 p.m. deceased was brought to his hospital by her husband. He found that there were 80% burn injuries and the patient was conscious. Preliminary immediate treatment was given to her. He produced certificate in this regard at Exhibit15. The witness further stated that he informed Mithapur Police Station and on his message, police visited the hospital and found the patient. Since the patient was conscious, police inquired from patient. Thereafter, Executive Magistrate also visited. Though condition of the patient was serious but she was conscious. Thereafter, Executive Magistrate recorded the Dying Declaration and he identified his endorsement on Exhibit18 Dying Declaration, in which he has made the endorsement that patient was conscious. In examination, he has been asked about the history given by the patient of alleged burns. He was asked about the treatment given by him, that is, the drugs and medicines administered to the deceased. In examination, he has been asked about the history given by the patient of alleged burns. He was asked about the treatment given by him, that is, the drugs and medicines administered to the deceased. He stated that in such cases, ordinarily, they administer pain killer medicines. It is not possible to record the blood pressure of the patient if the skin was burnt. In such cases, with the passing of time, it was possible that patient may usually lose consciousness, but he denied that, in incident like this, patient loses the consciousness about the time and place. He denied that in such incident, morphine and barbiturate medicines were required to be administered. He denied that on account of medicines he administered, patient was drowsy. He denied the allegations that he signed the dying declaration only because police stated so. He ruled out the possibility of burn injuries to the patient while she was cooking on hearth (chula). He further in crossexamination, the witness stated emphatically that when he examined the patient, kerosene was smelling from her body. He stated that he has not mentioned this in his certificate or in case papers. He denied the allegation that since the patient was burnt in her face also, she was not able to speak. 9. PW3 Mansukbhai Madhabhai Makwana, examined at Exhibit17, was the Executive Magistrate. According to him, at 16.45 hours, on 4th of December, 1998, he received a wireless message from Dwaraka Police Station that he was required to record Dying Declaration at Mithapur Tata Hospital and immediately he started for Mithapur. In half an hour, he reached at Tata Hospital, Mithapur. He met with Dr. Narbheram Hiradas Gondaliya. He inquired from him whether patient Roshan was conscious. The Doctor replied to him that the patient was conscious and he reached near the patient. He found that police staff was present and he inquired from them where was patient Roshanben. The police led him to patient. When dying declaration was recorded, he and Roshanben were all alone and no third person was present. Roshanben was in position to give replies and understands the questions. He asked the name of Roshanben and then he asked the age of patient. She stated that her age is one year less 20 i.e. 19 years. In reply whether she was married, she stated that she was married. Roshanben was in position to give replies and understands the questions. He asked the name of Roshanben and then he asked the age of patient. She stated that her age is one year less 20 i.e. 19 years. In reply whether she was married, she stated that she was married. Then he inquired the name of the husband of the patient, which she gave to be Noor Mohmad Adam. When her residential address was asked, the patient stated that they were residing at village Balapar Bet. Then he inquired from patient that what had happened. Then the patient replied that her "diyar" i.e. younger brother of her husband, Karim gagged her and dragged her in a room and thereafter the witness inquired from her that what had done to her by her diyar. In reply, she stated that, after dragging her in a room, from a lantern or tin, he poured kerosene over her. Thereafter he inquired whether anybody else, except appellant, was present at that time. She stated that nobody was present. Then he inquired the time of the incident and patient replied that the incident had occurred on the same morning at about 11.30 a.m. The witness inquired from the patient thereafter that who had brought her to hospital. In reply she stated that her husband, her brother and her aunt had brought her to the hospital. Then the witness inquired that why appellant had poured the kerosene over her. In reply she stated that she prevented him from gibeying her and, therefore, Karim poured kerosene. The witness asked whether the patient wanted to say anything more, in which she stated 'no'. The witness further stated that he prepared dying declaration, which he identified at Exhibit18, and stated that the said dying declaration was written in his own hand writing, in which he obtained the thumb impression of right hand of the patient, though the said impression was not identified by anybody. Below dying declaration, he obtained the certificate of the Doctor about the consciousness of the patient. He also signed the dying declaration. He also produced on record the wireless message which he received. In examinationincross by the defence, the witness stated that he received wireless message at about 16.35 hours. Ordinarily, when such message is received from the police, they inquired as to whether the patient was conscious and then dying declaration is being recorded. He also signed the dying declaration. He also produced on record the wireless message which he received. In examinationincross by the defence, the witness stated that he received wireless message at about 16.35 hours. Ordinarily, when such message is received from the police, they inquired as to whether the patient was conscious and then dying declaration is being recorded. According to him, he had a telephonic talk with the Mithapur Police Station from his office. The police had informed him that the patient was conscious and thereafter in Government vehicle he had reached at Tata Hospital. At that time, his driver was one Dipakbhai Thakkar. Reaching at Tata Hospital, immediately he had met Dr. Gondaliya. Ordinarily, when the Executive Magistrate visits hospital for recording dying declaration, nobody prevents the Executive Magistrate and all necessary arrangements are being made. After seeing the Doctor, he inquired from police that where was the patient. When he recorded the dying declaration, except patient and himself, nobody was present. He stated that he could not say where the Doctor made endorsement about the consciousness of patient below Exhibit18 dying declaration. He stated that the endorsement might have been made at the ward of the patient or in his chamber. When he reached at Tata Hospital, he found relatives of deceased in the hospital. All of them were requested to vacate the room while recording the dying declaration and they had gone out of the room. When he reached at the hospital, deceased was in position to talk with his relatives. He denied the allegation that parental relatives of the deceased had tutored Roshanben that how to make a statement in dying declaration. He denied the allegation that accordingly the patient had given the dying declaration. 10. PW4 Havaben Adhambhai, examined at Exhibit19, is sister of appellant - accused. She has not supported the prosecution case. It was the prosecution case that on the day of the incident, the age of the witness was about 12 years. According to prosecution case, deceased asked Havaben to fetch water because she was cooking and water was needed. Therefore, this witness had been to well of the village. At that time, she found that her brother Karim i.e. accused was sitting in the courtyard of the house and deceased was preparing meals in the kitchen. According to prosecution case, deceased asked Havaben to fetch water because she was cooking and water was needed. Therefore, this witness had been to well of the village. At that time, she found that her brother Karim i.e. accused was sitting in the courtyard of the house and deceased was preparing meals in the kitchen. According to prosecution case, when after 10 minutes this witness Havaben returned from fetching water, she found that near the door of southern side room, deceased was lying in burnt condition and was shouting for help and, therefore, this witness poured water and tried to extinguish fire by quilt, and at that time, she noticed that the accused appellant was not within the vicinity of the house. Now she did not support the prosecution case and stated before the court that at the time of the incident she and deceased Roshanben were alone in their house and Roshanben was preparing meals in the kitchen while she was cleaning rice. When she went inside, she found that Roshanben was burnt. He denied the fact that when she had not gone to fetch water, the accused was in the house and after returning she found that Roshanben was burning. She was confronted by the Prosecutor with her police statement. In her crossexamination by defence, she stated that her brother Noor Mohmad Adambhai i.e. husband of the deceased came at about 11'O clock. She did not know whether Noor Mohmad asked Roshanben that how the incident had occurred. 11. PW5 Jarinaben Ibrahim, examined at Exhibit20, was, according to prosecution case, a social worker at the relevant time. According to her, she was a social worker and some times police used to call her. Police called her when a bride was burnt or had consumed poison. On 4th of December,1998, police had called her at Mithapur Tata Hospital. When she reached at Mithapur Tata Hospital, she found Jamadar Prabhatsinh there. She inquired from Jamadar Prabhatsinh why was she called and in reply Jamadar indicated Roshanben and stated that they were recording complaint of Roshanben, in presence of her. According to her, she came to know that the name of the patient was Roshanben and her inlaws were of Balapar Bet. Police was recording the complaint and then requested her to talk to patient. Therefore, she asked patient that how was she burnt. According to her, she came to know that the name of the patient was Roshanben and her inlaws were of Balapar Bet. Police was recording the complaint and then requested her to talk to patient. Therefore, she asked patient that how was she burnt. Roshanben stated that her diyar was gibeying her and when she refused, her "diyar" caught her with her odhani. Thereafter, from lantern, he poured kerosene on her body and ignited her and thereafter he pushed her and ran out of the house. She also stated before the police that at that time in the house patient and the accused were alone and nobody else was present. The witness stated that Roshan told her that after some times, her sisterinlaw came and she also shouted for help. The police was recording the statement of the patient. After recording the statement, police obtained her signature and in her presence police also obtained the thumb impression of patient Roshanben. When complaint was recorded, Roshanben only was present in the ward and her husband was sitting outside. She identified the complaint at Exhibit44 which was recorded in her presence. In her cross-examination, she stated that, the police had not recorded her statement. She denied the allegation that Roshanben never stated to this witness that accused had poured liquid and had ignited her. She stated that she was not fully educated and only knew how to sign. Whatever she asked to Roshan and whatever replies Roshan had given, had recorded by the police, but she had not read what was recorded by the police. She stated that the complaint was read over to her by police but she did not read the complaint herself. In crossexamination, she explained that when she asked Roshanben that how her diyar accused gibeyed her and Roshan stated that her diyar accused wanted to take undue liberty with her. She stated that this fact was not recorded in the complaint and she did not ask the police that why this fact was not recorded in the complaint. While complaint was being recorded, Writer Constable was present. She denied the allegation that Roshan had stated that while she was cooking, her clothes got flames and she burnt. She denied the allegation that Roshan stated that her parental relatives had tutored her to give statement against her "diyar". While complaint was being recorded, Writer Constable was present. She denied the allegation that Roshan had stated that while she was cooking, her clothes got flames and she burnt. She denied the allegation that Roshan stated that her parental relatives had tutored her to give statement against her "diyar". The witness further stated in crossexamination that she stayed at Mithapur and was a social worker. She was called from her house by the police at about 3.45 hours. She was called by one police personnel Kishorbhai and immediately she had reached to hospital. Kishorbhai had conveyed her that one female was burnt and, therefore, she was called to the hospital. She denied the allegation that Roshan stated against the accused on tutoring by her parental relatives. She denied the allegation that the complaint was recorded in her presence. She denied the allegation that her signature was obtained afterwards. She denied the allegation that she knew Roshanben and her relatives. She stated that for social work, some times she goes to Bet. She stated that her caste meeting did not take place at village Bet, but it took place at Mithapur. She denied the allegation that she had relationship with Roshan and her parental relatives and, therefore, she deposed false facts. She stated that till the complaint was recorded, the time was about 5.45 to 6.00 p.m. Thereafter, Mamlatdar (Executive Magistrate) had come. 12. PW6 Manubhai Poppatbhai Gohil, examined at Exhibit - 21, was at the relevant juncture serving as Circle Inspector in Revenue Department. He had received a yadi from police and a copy of panchnama of scene of offence. Therefore, he visited the house of the deceased and had prepared a map, which he produced at Exhibit - 22. 13. PW7 Haji Noormohamad, examined at Exhibit - 23, happens to be cousin brother of the deceased. He stated that Abhu Kasam Jadeja, father of the deceased, happened to be his uncle and Abhu Kasam Jadeja had died. Daughter of Abhu Kasam - Roshan had married with Noor Mohmad Adam at village Balapar Bet. She died before about eight months. She was staying with her inlaws and husband when she died. On that day, brother of Noor Mohmad - Sattar had conveyed him about the incident. Therefore, at about 12'O clock in the morning, with his mother, he visited the house of the deceased. She died before about eight months. She was staying with her inlaws and husband when she died. On that day, brother of Noor Mohmad - Sattar had conveyed him about the incident. Therefore, at about 12'O clock in the morning, with his mother, he visited the house of the deceased. He noticed that Roshan was lying in osari in burnt condition. One lantern and one match box were lying near her. He met Roshan and inquired about the incident. Roshan replied that while she was cooking in the kitchen, accused came and started gibeying her. When she tried to prevent him, the accused gagged her eyes and mouth with her odhani and dragged her inside the room. She replied that thereafter the accused poured kerosene from lantern, ignited by match box and ran away. The witness further stated that thereafter he inquired from Roshan that who were present in the house when the incident occurred. She had replied that at that time in the house she and Karim were present and nobody else was there. Her sisterinlaw had been to fetch water. She further stated to the witness that when she shouted, her sisterinlaw came and poured water over her. According to this witness, thereafter, they shifted Roshan to Primary Health Center of village Bet and from there to Tata Hospital at Mithapur. At Tata Hospital, Mithapur, statement of Roshan was recorded by police. At that time, he was standing outside. She was kept in Tata Hospital till 7 O clock in the evening and thereafter she was shifted to Jamnagar Hospital. The witness identified lantern i.e. muddamal article No.3 and match box. He identified the accused also. In his crossexamination, he stated that deceased Roshan was his cousin sister. When they reached at the house of the deceased, the time was about 12.00 to 12.30. At that time, neighbours as well as relatives and inlaws of Roshan were present. He denied the allegation that when the incident occurred , sisterinlaw of Roshan Havaben was also present. He denied the allegation that when the incident occurred, accused Karim was not present in the house. He admitted that the lantern like muddamal article No.3 might be used generally in every house. He denied the allegation that he noticed muddamal article No.3 near the deceased. He denied that he did not notice match box as well. He denied the allegation that when the incident occurred, accused Karim was not present in the house. He admitted that the lantern like muddamal article No.3 might be used generally in every house. He denied the allegation that he noticed muddamal article No.3 near the deceased. He denied that he did not notice match box as well. He denied the allegation that Roshan never told him about the incident, but to involve Karim in the incident he deposed falsely. He denied the allegation also that at the instance of Sarifaben (his mother) he deposed falsely. He denied the allegation that Roshan had burnt on account of accidental injuries at the time while she was cooking meals. 14. PW8 Rajendrasinh Khodaji, examined at Exhibit25, is panch of inquest panchnama - Exhibit - 26. The witness has produced the panchnama and identified the signature and the signature of other panchas. 15. PW9 Tarunkumar Ramaniklal, examined at Exhibit27, is also a panch witness of panchnama of scene of offence, which is placed at Exhibit28. He has supported the panchnama in prosecution case. He also stated that the police seized lantern etc from the scene of offence. He identified his signature on slips of muddamal. 16. PW10 Vinodbbhai Harilal, examined at Exhibit29, is also a panch witness. According to him, on 5th of December,1998, he and second panch Mukund were called by police for panchnama at the house of the accused. Accused was in his house. He had worn pant and Tshirt and those clothes were smelling of kerosene. Those clothes were seized by the police and panchnama was drawn, which he produced at Exhibit30 and identified his signature. 17. PW11 Ramjibhai Tapubhai, examined at Exhibit30, was serving as Head Constable, Mithapur Outpost Police Station and according to him, at that time, ASI Prapatsinh Kodarji Jadav was in charge of said Outpost. On 4th of December, 1998, a wireless message was received by the Outpost Police Station from Tata Hospital, Mithapur, that Roshanben , wife of Noor Mohmad, resident of Balapur Bet, was admitted to hospital in burnt condition. On receiving this message, ASI Prapatsinh Kodarji Jadav and Constable Kishorbhai, went to the hospital. On 4th of December, 1998, a wireless message was received by the Outpost Police Station from Tata Hospital, Mithapur, that Roshanben , wife of Noor Mohmad, resident of Balapur Bet, was admitted to hospital in burnt condition. On receiving this message, ASI Prapatsinh Kodarji Jadav and Constable Kishorbhai, went to the hospital. From hospital, ASI Prapatsinh Kodarji Jadav, informed him on phone that, to record the dying declaration, wireless message was required to be conveyed to the Executive Magistrate, Dwaraka and, therefore, from Mithapur Outpost, he had conveyed a message to Dwaraka Police Station at 16.20 hours, a copy of the said message is placed at Exhibit32. 18. PW12 Salamsinh Jetabhai Chauhan, examined at Exhibit34, was serving as Head Constable at Okha Police Station. He stated that on 4th of December,1998, while he was incharge of Police Station, at about 17.15 hours, he received a complaint, which was recorded by ASI Prapatsinh Kodarji Jadav of Outpost Police Station, Mithapur, through Police Constable Kishorbhai, with the yadi. He registered the crime vide Crime No.101 of 1998. In pursuance of the complaint, he made entry in the station diary, copies of which he produced at Exhibit - 35. He identified the complaint also. According to him, after registering the crime, he entrusted the investigation to PSI Mr. Narendrasinh Bahadursinh Jadeja. 19. PW13 Parakaramsinh Kanubha Jadeja, examined at Exhibit37, was serving as Police SubInspector, Hanuman Gate Police Station, Jamnagar on 5th of December, 1998. He stated that Jamnagar City is coming under the jurisdiction of 'B' Division Police Station. Mr. R.K. Modiya, Head Constable on duty at Irwin Hospital, addressed a yadi to 'B' Division Police Station, which is on record at Exhibit38. According to this yadi, Head Constable Incharge in Irwin Hospital had informed him that patient Roshanben had died during treatment on 5th of December, 1998. He prepared an inquest panchnama, which he identified at Exhibit26 including his signature. He made arrangements for postmortem, etc. In his examinationincross, the witness stated that the dead body was wrapped in bandages including hands and legs. There were bandages on thumbs and fingers. He denied that he obtained signatures on prepared inquest panchanama. 20. PW14 Dilipsinh Bhimsinh Jadeja, examined at Exhibit41, was on duty on 4th of December, 1998 as Head Constable in Irwin Hospital at Jamnagar. In his examinationincross, the witness stated that the dead body was wrapped in bandages including hands and legs. There were bandages on thumbs and fingers. He denied that he obtained signatures on prepared inquest panchanama. 20. PW14 Dilipsinh Bhimsinh Jadeja, examined at Exhibit41, was on duty on 4th of December, 1998 as Head Constable in Irwin Hospital at Jamnagar. He deposed that his duty at Irwin Hospital was from 2.00 hours of 4th of December, 1998 to 8.00 hours of 5th of December, 1998. Along with him, one Constable R.K. Modiya also present. On that day, Roshanben Noor Mohmad Adam of village Bet was admitted to Irwin Hospital in the burn ward of Dr. Ambassna. The Doctor on duty informed them about this with MLC Register number and, therefore, he went to burn ward and asked the Doctor on duty as to whether the patient was conscious. The patient was conscious and, therefore, he visited Roshanben and inquired about how she had burnt. Roshan replied that her diyar had burnt her. Further, on inquiring, she stated that she was also shifted to Mithapur Tata Hospital and from there for further treatment she was shifted to Irwin Hospital. The witness categorically inquired whether any complaint of Roshan was recorded by police and Roshan replied 'yes' that police had recorded her complaint. Then again, this witness inquired whether the Executive Magistrate had recorded her statement and she stated in affirmative. For the verification of what had stated by Roshan, he conveyed a yadi to City 'B' Division Police Station that verification be made from concerned police station about this. The witness further stated that he received a telephonic message from City 'B' Division Police Station of Jamnagar that at Okha Police Station, a crime was registered vide Crime Register No. 101 of 1998 under Section 307 of the Indian Penal Code and that a dying declaration was also recorded. He had made the entries of this message in MLC register, copy of which he produced at Exhibit42. According to witness, Roshan died on 5th of December, 1998. In crossexamination, witness stated that Roshan stated to him that Roshan had burnt on account of accident while she was cooking. Witness denied that Roshan did not state before the police that her diyar had burnt her. According to witness, Roshan died on 5th of December, 1998. In crossexamination, witness stated that Roshan stated to him that Roshan had burnt on account of accident while she was cooking. Witness denied that Roshan did not state before the police that her diyar had burnt her. He stated that he could not say that the whole body of Roshan was wrapped in bandages, this is so because, she was covered by blanket. He denied the allegation that to cooperate the complainant party, he was deposing falsely. 21. PW15 Prapatsinh Kodarji Jadav, examined at Exhibit43, was ASI of Outpost Police Station, Mithapur at the relevant time. He stated that while he was serving as ASI on 4th of December,1998, he received a telephonic message from Dr. Narbheram Hiradas Gondaliya, Tata Hospital at Mithapur, to the effect that Roshan of Balapar Bet village had been admitted to hospital for burn injuries. Therefore, he directed his Constable to call female leader Jarinaben Ibrahim and thereafter along with Jarinaben he reached at Tata Hospital, Mithapur, first he met with Dr. Gondaliya. He inquired about the physical condition of the patient Roshan and inquired whether the patient was in position to speak and was conscious. The Doctor stated to him that Roshan was conscious and was able to speak and thereafter the witness reached at the cot of Roshan and found that her husband Noor Mohmad Adam and her aunt Sarifaben were also present there. At that time, he asked Roshan what had happened to her and how had she got burn injuries. Roshan replied and he recorded the FIR as dictated by Roshan in the presence of female social worker Jarinaben Ibrahim. Below the complaint he obtained the right hand thumb impression of Roshan because that thumb was good and was not burnt. Below the complaint he also obtained signature of Social worker Jarinaben Ibrahim and he also signed the complaint. The witness identified the complaint from the record and had also obtained endorsement of Dr. Gondaliya to the effect that patient was conscious. Thereafter, he forwarded a yadi along with the complaint for registering a crime. He also had a telephonic talk with the Mithapur Outpost and directed to call the Executive Magistrate, Dwaraka, to record dying declaration of Roshan. He identified the hand writing of the complaint of his Writer Constable Kishorbhai from Exhibit44. Gondaliya to the effect that patient was conscious. Thereafter, he forwarded a yadi along with the complaint for registering a crime. He also had a telephonic talk with the Mithapur Outpost and directed to call the Executive Magistrate, Dwaraka, to record dying declaration of Roshan. He identified the hand writing of the complaint of his Writer Constable Kishorbhai from Exhibit44. In his crossexamination, he stated that Roshan belonged to Vagher Community. She was speaking in Gujarati but she was speaking few words in Vagher dialect which could not be understood. Jarinaben Ibrahim present at that time knew Gujarati and Vagher both languages. He denied the suggestion that Jarinaben was called as an interpretor for Vagher language. Roshan was speaking few words which were not understood by him and those words were translated by Jarinaben to him. He accepted the suggestion that Jarinaben was social worker and, therefore, many times, she was called in this manner by police. He denied the suggestion that Jarinaben happens to be the relative of complainant party and, therefore, to record false complaint, she was called as social worker. He denied the suggestion that Roshan stated before him that while she was cooking she got burned. He stated that Roshan was wrapped with bandages all over the body and thereafter he stated that the bandages were not all over the body. He denied the suggestion that Exhibit 44 complaint was not offered and dictated by Roshanben. He denied the suggestion that Sarifaben tutored Roshanben to give false complaint. He stated that he had not recorded the statement of Dr. Gondaliya. He denied the suggestion that Roshan was only speaking in Vagher language and she was not speaking in Gujarati. He denied the suggestion that whatever stated by Roshan in Vagher language was translated by Jarinaben and was recorded in complaint. He stated that he recorded the complaint at about 4.15 p.m. He stated that one Constable is on permanent duty at village Bet. He could not say at that time who was Police Constable on duty at village Bet. He denied the suggestion that though the right hand thumb of Roshan was completely burnt, he was falsely deposing that he had taken right hand thumb impression of Roshan. He denied the suggestion that though Roshan had burnt while she was cooking, but to involve the accused falsely, he had recorded the complaint at Exhibit44. He denied the suggestion that though the right hand thumb of Roshan was completely burnt, he was falsely deposing that he had taken right hand thumb impression of Roshan. He denied the suggestion that though Roshan had burnt while she was cooking, but to involve the accused falsely, he had recorded the complaint at Exhibit44. He also denied the suggestion that he recorded the complaint at the instance of complainant party. 22. PW16 Narendrasinh Bahadursinh Jadeja, examined at Exhibit46, was the then PSI of Okha Police Station and Investigating Officer in this case. According to him, investigation was entrusted to him on 4th of December, 1998 and he had visited Mithapur Tata Hospital and also met Dr. Gondaliya. He inquired about the condition of Roshan which was good and he recorded further statement of her. Thereafter, he recorded statements of other witnesses, draw panchnama of scene of offenc, seized muddamal articles, arrested the accused, sent the muddamal to Forensic Science Laboratory, called for postmortem note etc. and papers from Jamnagar and filed charge sheet. In his crossexamination, he denied that Roshan was only speaking in Vagher language. He stated that he understood Vagher language very well. He stated that Roshan was speaking Vagher as well as Gujarati both languages. He denied the suggestion that during the investigation it was revealed that at the time of the incident, accused was not present at the scene of offence. He denied the suggestion that on false complaint he made false investigation. He denied that all the panchnamas he had not drawn properly or in presence of panchas. He denied that he had not seized muddamal. 23. This is all the evidence of prosecution tendered during trial. 24. Defence also examined Defence Witness No.1 Dr. Jayantilal Gokalbhai Pagda, examined at Exhibit58. He is the Doctor, who, in first point of time, examined the deceased. The witness stated that, at village Bet, he was serving as Medical Officer since 1989. On 4th of December, 1998, Roshan was brought before him and she was examined by him. Her body was wrapped. She was under shock. He had given certificate in this respect, which is placed at Exhibit56. He recorded whatever stated by the patient in Exhibit56. Whatever he was asking to the patient he recorded in the certificate Exhibit56. The husband of Roshan had given history that Roshan had got burn injuries while she was cooking. Her body was wrapped. She was under shock. He had given certificate in this respect, which is placed at Exhibit56. He recorded whatever stated by the patient in Exhibit56. Whatever he was asking to the patient he recorded in the certificate Exhibit56. The husband of Roshan had given history that Roshan had got burn injuries while she was cooking. This patient was Vagher by caste and was speaking Vagher language. The patient was in semiconscious condition and was not in position to speak. There is Primary Health Center at Okha and Medical Officer is there. He further stated that if someone is dragged, it is likely that some injuries might be caused of abrasion on her body. The patient was under shock. If one cooks on hearth and gets accidental burn injuries, then such person starts burning. He stated that in the case of 80 to 90% burns patient may or may not speak. It had not happened that patient herself might have given history to him and her husband might not have given history to him. The condition of the patient was deteriorating. The hands of the patient were totally burnt. In crossexamination by the prosecution, he stated that the patient had 90% burn injuries and, therefore, she was semiconscious. The patient had not clear awareness. The patient was brought before him by her husband Noor Mohmad Adam. Since the patient was unconscious, how the incident had occurred, was asked by him to her husband and whatever her husband stated to him, has been noted by him in the history. He tried to inquire from the patient but the patient was not in position to speak. At the instance of the prosecution, the witness produced case papers at Exhibit59. He admitted that palms of the patient had no burn injuries. The body of the patient was smelling of kerosene. He also admitted that if one gets burn injury while cooking, then front portion of body of such person would get burn injuries and not back portion of body of such person. In the case of Roshanben, back portion of her body was also burnt. He also admitted that in cases of burnt like this, any wounds and marks of abrasions caused on account of dragging, would not be appearing on body. He also admitted that if proper treatment is administered to such patient, it can regain conscious. 25. In the case of Roshanben, back portion of her body was also burnt. He also admitted that in cases of burnt like this, any wounds and marks of abrasions caused on account of dragging, would not be appearing on body. He also admitted that if proper treatment is administered to such patient, it can regain conscious. 25. Learned Advocate Mr. B.P. Munshi, for the appellant, while arguing vehemently and showing infirmities about the dying declaration and complaint recorded, submitted that it is an admitted fact that deceased had 90% burn injuries. It is submitted that while noting the postmortem note at Exhibit13, Column17, it is almost 100% burns and in this situation it is impossible that the deceased was conscious and in fit state of mind to even speak a single word. It is submitted that Dr. Bipin Jivanbhai Patel stated that, while performing postmortem, lungs, brain etc internal organs of the deceased were congested and, therefore, it would not be safe to come to the conclusion that in any case the deceased was in fit state of mind to give dying declaration or complaint. This is the first infirmity, which goes to the root of the evidence available to the prosecution and neither dying declaration nor complaint is reliable. Even Dr. Narbheram Hiradas Gondaliya as well as witness Dr. Jayantilal Gokalbhai Pagda both confirmed that the deceased had 90% burn injuries. It is submitted that the conduct of witness Dr. Narbheram Hiradas Gondaliya is condemnable. In certificate he gave, which is at Exhibit15, he noted the history of alleged burn greater than 80 degree full body and, therefore, his opinion that patient was conscious, appears not to be correct. Other wise also, it is clearly coming out that when complaint, in first point of time, was recorded and thereafter dying declaration was recorded, Dr. Gondaliya was not present and his endorsement has been obtained afterwards to involve the accused in fabricated dying declaration and complaint. In his deposition, he stated that he had informed police at about 2.30 p.m. and police came at about 4.00 p.m. and after police came he had gone to OPD and, therefore, his endorsement below complaint Exhibit 44 and dying declaration Exhibit18 is not trustworthy as to consciousness of the deceased. In any case, fitness of mind of the deceased has not been certified by any of the doctors. In any case, fitness of mind of the deceased has not been certified by any of the doctors. Like wise, it is submitted that PW 3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, is also not a reliable witness, firstly, because PW15 Prapatsinh Khodarji Jadav, categorically stated in his deposition that deceased belonged to Vagher Community and was speaking Vagher language and, therefore, Prapatsinh Kodarji Jadav called Jarinaben, who explained Vagher language and complaint was recorded, while Executive Magistrate Mansukhbhai Madhabhai Makwana recorded the dying declaration as if deceased was speaking all the while in Gujarati. This indicates that dying declaration was not recorded verbatim as dictated by the deceased and that is a major infirmity destroying the credibility of dying declaration at Exhibit18. This witness further stated that he recorded the dying declaration at 5.30 hours and completed at 5.40 hours. When the evidence of Jarinaben is perused, it is amply clear from her evidence that even the complaint was recorded fully at 5.45 p.m. to 6.00 p.m. It is the prosecution case that first complaint was recorded and then dying declaration was recorded and, therefore, the recording of dying declaration by witness Mansukhbhai Madhabhai Makwana, Executive Magistrate, creates doubt along with the fact that Roshan was burnt all over the body and had burn injuries more than 90%. The witness could not say that when the Doctor made endorsement. The witness was not certain whether the signature of Doctor below dying declaration about consciousness of the deceased was obtained at the ward or in the chamber of the Doctor. In any case, it denotes that Doctor was not all through out present when dying declaration was recorded and it clearly appears that the endorsement of Doctor was obtained after preparing dying declaration. Undoubtedly, dying declaration, when perused, it is clear that, it could not be in the language of an illiterate lady of 19 years, and it is also to be noted that, the role of the accused which the deceased attributes is to the extent only that he poured kerosene. She did not state before the Executive Magistrate that she was ignited by the accused. In support, it is submitted that defence witness Dr. Jayantilal Gokalbhai Pagda has been examined. She did not state before the Executive Magistrate that she was ignited by the accused. In support, it is submitted that defence witness Dr. Jayantilal Gokalbhai Pagda has been examined. It has been vehemently submitted that, in fact, why the prosecution dropped this witness, has not been explained by the prosecution nor the learned APP in the Appeal as well. Prosecution cannot drop material witness as to cause prejudice to the accused, and if such witness is dropped, reasons must be assigned. No reasons, as such, have been assigned for dropping this witness and, therefore, defence was obliged to examine Dr. Jayantilal Gokalbhai Pagda, who, first in point of time, had examined the deceased. In his examinationinchief, it has been specifically mentioned by him that the patient was in semiconscious position and was not in position to speak, the history which he noted in the certificate was about accidental burns while she was cooking. The witness has also stated that the patient was Vagher and was speaking Vagher language and, therefore, he noted the history in the certificate as well as in case papers at Exhibit59. It is submitted that the said certificate is produced on record at Exhibit56. This, according to learned Advocate for the appellant that makes it very clear that, on account of more than 90% burn injuries, her state of mind was semiconscious and she was not in position to speak at all and whatever was she speaking, it was in Vagher language and this statement of this witness destroys the case of the prosecution that PW15 Prapatsinh Kodarji Jadav recorded the complaint in presence of witness Jarinaben and that PW3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, recorded the dying declaration. This appears to be totally improbable story of the prosecution. Therefore, dying declaration has this much serious infirmities and could not have been relied upon by the trial court. It is submitted that only witness examined PW4 Havaben Adhambhai has not supported the prosecution case and stated that when she returned after fetching water, she found that the deceased was lying near the door of the room and these circumstances lead to conclude that the deceased got burn injuries while she was cooking in kitchen and at that time neither Havaben nor accused was present. 26. 26. Learned Advocate for the appellant vehemently attacked the conduct of investigation, especially it is stated that, when police witnesses are found truthful, are relied upon by the court and the presumption arises that official acts are done in official manner and then in these circumstances, what was the need for PW15 Prapatsinh Kanubha Jadeja to call social worker Jarinaben, who has been examined as PW5. It is stated that she was a social worker and, therefore, she was called. This conduct of investigation is condemnable and thereafter the whole investigation is directed towards the story that accused burnt the deceased. PW5 Jarinaben is an illiterate lady and no provision of law mandates that while recording of the complaint, any third party should be kept present as a witness. Not only that, it has been revealed in her evidence that, many a times, she had been called by the police even in panchnamas also and, therefore, she is totally interested and police witness and truthfulness of this witness is in doubt. Procedure adopted by investigating agency is unknown to legal principles and it was not necessary at all to call PW5 Jarinaben to hear the dying declaration of the deceased in form of complaint, and that too, by an authorised police officer. This violates Sections 161 and 162 of the Code of Criminal Procedure and Section 145 of the Indian Evidence Act. It was the duty of the court to inquire and put questions in this regard but powers under Section 165 of the Indian Evidence Act has not been exercised by the Trial Court. Not only that, but prosecution failed to explain the circumstance under which PW5 Jarinaben was called by the police to witness the recording of FIR. The investigation therefore is tainted and no reliance at all could be placed upon such investigation. In appeal also, it becomes the duty of the respondent State to explain these circumstances and such circumstances are not explained at this stage even by respondent State. In her examination in cross, she has stated in express terms that her statement was not recorded by the police and, in fact, her statement was recorded by the police. So, therefore also, she is not a truthful witness and cannot be relied upon. Like wise, prosecution also failed to explain that why material witness Dr. Jayantilal Gokalbhai Pagda was dropped and suppressed. So, therefore also, she is not a truthful witness and cannot be relied upon. Like wise, prosecution also failed to explain that why material witness Dr. Jayantilal Gokalbhai Pagda was dropped and suppressed. All these circumstances lead to the only conclusion that the prosecution case is doubtful and, therefore, could not have been believed by the Trial Judge. While going through the judgment impugned, it has been submitted by the learned Advocate for the appellant that the learned Trial Judge relied upon the extraneous facts which were not on record. It is submitted that the Investigating Officer PW16 Narendrasinh Bahadursinh Jadeja, examined at Exhibit46, also submitted that when he undertook the investigation, he recorded the further statement of the deceased. That statement would be now dying declaration, but not coming on record. Adverse inference, therefore, is required to be drawn against the prosecution. 27. Further, it has been submitted that except cousin brother PW7 Haji Noormohamad, no independent witness supports the theory of prosecution at the scene of offence. It has come in the evidence of Haji Noormohamad and other witnesses that neighbours had gathered after the incident at the scene of offence but none has been examined. Therefore, only interested witnesses have been examined and no independent witness could be examined by the prosecution to prove its case. It is, therefore, submitted that the impugned judgment and order, which is solely based on dying declaration, is required to be set aside and Appeal be allowed. 28. As against that Mr. L.B. Dabhi, learned APP, for the respondent State submitted that PW2 Dr. Narbheram Hiradas Gondaliya, without any hesitation, has submitted that patient was conscious and was in position to give dying declaration. He has been crossexamined but nothing could be elicited by the defence that what is stated by this witness could not be believed. Like wise, PW3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, is also an independent witness and he stated that deceased was in position to understand the questions and to give answers and there is no single reason that why this witness could not have been believed. It is not at all even the case of the defence that deceased knew only Vagher language and not Gujarati. This witness was not confronted with the fact that deceased did not know Gujarati and knew only Vagher language. It is not at all even the case of the defence that deceased knew only Vagher language and not Gujarati. This witness was not confronted with the fact that deceased did not know Gujarati and knew only Vagher language. Therefore, only because while giving complaint, she was speaking very few words of Vagher language might have been explained by witness Jarinaben to PW16 Narendrasinh Bahadursinh Jadeja, would not raise even a shred of doubt that dying declaration Exhibit18 was fabricated. There was no reason for these independent witnesses to create dying declaration or the FIR just to involve the accused at the instance of relatives of the deceased and no such evidence was tendered by the defence. Therefore, there is no lacuna. So far as Dying Declaration - Exhibit18 is concerned, is more corroborated and supported again by the important witness PW7 Haji Noor Mohamad, who is again an independent witness. PW14 Dilipsinh Bhimsinh Jadeja, duty Head Constable on Irwin Hospital and only because social worker was called by the police, would not weaken the prosecution case. Prosecution case is more supported by other corroborating evidence as well like panch of scene of offence, where the smell of kerosene was apparent, lantern was found and match box was found and then all the medical evidence supports the prosecution case. When on the next day the accused was arrested, from his clothes also, the smell of kerosene was apparent. It is submitted that it is the privilege of the prosecution that to prove a single fact, how many witnesses could have been examined by the prosecution. When other witnesses were available of the very fact it was not necessary for the prosecution to examine Dr. Jayantilal Gokalbhai Pagda and, therefore, there is no substance in the argument that the prosecution dropped the material witness and adverse inference was required to be drawn against the prosecution. Learned APP Mr. Dabhi relied upon certain decisions which are as under : (i) in the matter of Sher Singh v. State of Punjab, as reported in 2008 CRI L.J. 2062, wherein the Supreme Court observed that fitness of mind is to be ascertained by the courts from the facts of the case, that was the case of 80% burn injuries and DD was relied upon. (ii) in the matter of Bapu v. State of Maharashtra, as reported in 2007 Cri. (ii) in the matter of Bapu v. State of Maharashtra, as reported in 2007 Cri. L.J. 310 (SC) wherein there were three consistent dying declarations and 80% burn injury and the dying declarations were relied upon. (iii) in the case of Muth Kutty v. State By Inspector of Police, Tamil Nadu, as reported in AIR 2005 SC 1473 , where in the court believed dying declaration though the deceased had 90% injury. Therefore, it is submitted that there is no merit at all in Appeal and none of the submissions made by the appellant is tenable and the Appeal is required to be dismissed. 29. We have considered the rival contentions advanced in this Appeal. We have reappreciated the whole evidence recorded during the trial. We have taken into consideration complete and comprehensive evaluation of all vital features of the case and the broad and reasonable probabilities arising out of the circumstances emerging from the evidence recorded and contentions raised. 30. While appreciating the evidence of the witnesses and the contents of dying declarations, it would be relevant to notice the law as it stands today as to appreciating of evidence relating to dying declaration. Section 32(1) of the Indian Evidence Act, 1872 is an exception to the general rule that hearsay evidence is not admissible evidence and unless evidence is tested by crossexamination, it is not credit worthy. Under Section32 when a statement is made by a person as to the cause of death or as to any of the circumstances, which result in his death, in cases in which the cause of that person's death comes into question, such a statement, oral or in writing made by the deceased to the witness is a relevant fact and is admissible in evidence. The statement made by the deceased, called the dying declaration, falls in that category provided it has been made by the deceased while in a fit mental condition. It is well settled that conviction can be based on the dying declaration itself provided it is satisfactory and reliable. A dying declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment, a persons is most unlikely to make any untrue statement. The sanctity attached to dying declaration is that a person on the verge of death would not commit sin of implicating somebody falsely. A dying declaration made by a person on the verge of his death has a special sanctity, as at that solemn moment, a persons is most unlikely to make any untrue statement. The sanctity attached to dying declaration is that a person on the verge of death would not commit sin of implicating somebody falsely. The shadow of impending death is by itself the guarantee of truth of the statement made by the deceased regarding cause of circumstances leading to his death. The general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the person is at the point of death and when every hope of this world is gone. At that point of time every motive to falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. Such a solemn situation is considered by the law as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice. A dying declaration, therefore, enjoys almost a sacrosanct status as a piece of evidence, coming as it does from the mouth of the deceased victim. Once the statement of dying person and the evidence of the witnesses testifying to the same passes the test of careful scrutiny of the Courts, it becomes very important and reliable piece of evidence and if the Court is satisfied that the dying declaration is true and free from any embellishment such a dying declaration by itself can be sufficient for recording conviction even without looking for any corroboration. However, if there are any infirmities of such nature warranting further assurance then the Courts have to look for corroboration. The rule of corroboration requires that the dying declaration be subjected to close scrutiny since the evidence is untested by crossexamination. The declaration must be accepted, unless such declaration can be shown not to have been made in expectation of death or to be otherwise unreliable. Any evidence adduced for this purpose can only detract from its value, but does not affect its admissibility. It is also well settled that it is not necessary that recording of dying declaration should be in the form of question and answer. Any evidence adduced for this purpose can only detract from its value, but does not affect its admissibility. It is also well settled that it is not necessary that recording of dying declaration should be in the form of question and answer. One of the important tests of reliability of dying declaration is that the person who recorded it must be satisfied that the deceased was in a fit state of mind. Generally, the following three tests have been devised in judicial pronouncements in order to answer the question whether the dying declaration is true: (1) Was the victim in a position to identify the assailant/s? (2) Whether the version narrated by the victim is intrinsically sound and accords with probabilities? (3) Whether any material part is proved to be false by other reliable evidence? 31. While, thus, appreciating the evidence of prosecution in respect of dying declaration, it transpires that first in point of time, oral dying declaration was made by the deceased before PW7 Haji Noor Mohamad, who happens to be cousin brother of the deceased. It is the prosecution case that the incident occurred at 11.30 a.m. On that very day, after an hour, at about 12.00 or 12.30 p.m. this witness reached at the scene of offence, to whom, deceased in express terms stated that while she was cooking in the kitchen, the accused gibeyed her and on preventing him, deceased dragged her after gagging on odhani and poured kerosene from lantern and thereafter she was ignited by the accused. She also stated that her sisterinlaw Havaben returned from fetching water and attempted to extinguish flames. This witness noticed a lantern and match box, quilt, etc at the scene of offence. In his crossexamination, nothing is coming out except that he was relative and cousin brother of the deceased. All other suggestions put to this witness has been categorically denied by the witness. Nothing either from the crossexamination of this witness or from whole of the evidence recorded during the trial it could be demonstrated by the defence that this witness being related witness and, therefore, to rope in the accused, he deposed falsely before the court. We do not find any rhyme or reason to disbelieve this witness only because he was relative of the deceased. We do not find any rhyme or reason to disbelieve this witness only because he was relative of the deceased. True that evidence of relative witness should be examined carefully and going through the scrutiny of the evidence as a whole, we found that, this witness is corroborated by other evidence like dying declaration at Exhibit18 and FIR, that also is a dying declaration of the deceased. Therefore, it must be noted that first point in time, at about 12.15 to 12.30 p.m. oral dying declaration was made before this witness by deceased when the witness was still at the scene of offence and her husband was present. When circumstances are appreciated, we found this witness truthful and there is no iota of doubt, which would lead to believe that the witness deposed only to rope in the accused in this serious crime. 32. Thereafter, the deceased was shifted to Primary Health Center at Bet and from there to Mithapur Tata Hospital. From that juncture, the investigating agency came in picture. Much is said about the conduct of PW15 Prapatsinh Kodarji Jadav to call PW5 Jarinaben as a witness to FIR. We have scrutinised carefully the evidence of PW5 Jarinaben and PW15 Prapatsinh Kodarji Jadav, both in this respect. 33. It must be noted that this was the case of bride burning and, therefore, Jarinaben was called by Prapatsinh Kodarji Jadav, PW15, at the hospital. This is apparent from the four lines of his examinationinchief that when he received a message from Tata Hospital at Mithapur from Dr. Narbheram Hiradas Gondaliya that Roshanben was admitted to hospital with burn injuries, PW15 Prapatsinh Kodarji Jadav, thought it fit to call Jarinaben. Thus, it is apparent that, this being a bride burning case, Jarinaben was called. In his examinationincross, he has been asked about this and witness stated that many times like this one, Jarinaben, as female leader and social worker, was called by him. This denotes that, this was not the exceptional case wherein police took the assistance of social worker, but in many cases, this was followed. In his examinationincross, he has been asked about this and witness stated that many times like this one, Jarinaben, as female leader and social worker, was called by him. This denotes that, this was not the exceptional case wherein police took the assistance of social worker, but in many cases, this was followed. Of course, nothing in this respect is on record, but when we appreciate the circumstances of the case, it must be borne in mind that, at the relevant time, even complaint was filed under Section 307 of the Indian Penal Code and besides 90% burn injuries, the medical opinion was not that the deceased in all circumstances could not be saved. When this was the situation, involving social institutions and workers by the police, could not be said or attacked on the ground that merely to fabricate evidence, such witnesses were called by police. It is also true that it is not the mandate of law to call of an independent witness when first information is recorded, but at the same time, it must be noted that, investigation as envisaged by the Code of Criminal Procedure, does not recognise any settled mode as to totally eliminate the situation wherein in bride burning cases police calls social worker to attend deceased, perhaps, with intention that victim could be assisted by such agency, but when such social worker or such witness is present during investigation, undoubtedly, such witness becomes material to arrive at a just decision. In fact, the matter is required to be viewed from this angle that it is not the action of police to call social worker which by itself should be condemnable, but it is the duty of the court to appreciate the circumstances from the evidence recorded during trial and come to the conclusion that whether such witness is a fabrication in a prosecution case. Merely by calling a social worker in a bride burning case by police, when this was followed earlier also, would not weaken the prosecution case even if it was a defect on the part of the investigating agency unless it is overtly established that there was many deficiencies on the part of the investigating agency and prosecution witnesses. Merely by calling a social worker in a bride burning case by police, when this was followed earlier also, would not weaken the prosecution case even if it was a defect on the part of the investigating agency unless it is overtly established that there was many deficiencies on the part of the investigating agency and prosecution witnesses. Overall scrutiny of the evidence of PW5 Jarinaben and PW15 Prapatsinh Kodarji Jadav, reveals that the prosecution case is not at all affected by the fact that Jarinaben was called by the police and that she remained present while First Information Report was recorded by PW15 Prapatsinh Kodarji Jadav. On the contrary, while appreciating the evidence, naturalness of the events taking place and recording of FIR, as deposed by Jarinaben, lends credence to the prosecution case. We are unable to accept the contention of the learned Advocate for the appellant that prosecution has failed to explain that why Jarinaben was called and, therefore, the doubt was created in prosecution case, has no substance. What is material is after careful scrutiny of the evidence of prosecution, what transpires to the court is simple action on the police in a bride burning case to call social worker which would not weaken the prosecution case, but in this particular situation, the prosecution case is strengthened. This is not a fatal defect or infirmity in the case of prosecution as to throw overboard the prosecution case considering this issue and other surrounding circumstances of 90% burns etc, as submitted by learned Advocate for the appellant. 34. We have scrutinised the evidence of PW7 Haji Noormohamad, before whom, first oral dying declaration was made by the deceased. Thereafter, it appears that, deceased was shifted to Primary Health Center at village Bet, wherein she was treated by defence witness Dr. Jayantilal Gokalbhai Pagda and immediately thereafter she was shifted to Tata Hospital at Mithapur and the police was informed. While dying declaration was recorded during her stay at Mithapur Tata Hospital, first in point of time, FIR at Exhibit 44 was recorded by PW15 Prapatsinh Kodarji Jadav. When his evidence is re-appreciated, we found that when he was informed that Roshanben was admitted to the hospital and she had burn injuries, he called Jarinaben and reached the hospital and ascertained from Dr. Narbheram Hiradas Gondaliya about the condition of the deceased. When his evidence is re-appreciated, we found that when he was informed that Roshanben was admitted to the hospital and she had burn injuries, he called Jarinaben and reached the hospital and ascertained from Dr. Narbheram Hiradas Gondaliya about the condition of the deceased. After ascertaining from the Doctor that patient was conscious and was able to speak, he recorded the complaint wherein, as stated hereinabove, the deceased in express term, stated that it was the accused and accused only gibeyed her and after gagging her, dragged her in a room, poured kerosene and ignited her. He has been crossexamined by the defence and issue has been raised in crossexamination that Roshanben was speaking only Vagher language and not in Gujarati. The witness denied this allegation emphatically and stated that few words she was speaking in Vagher language, which was explained by Jarinaben in Gujarati and FIR was recorded. He denied that Jarinaben was called as an inter-pretor. Witness maintained this, saying that Jarinaben was called as a social worker. Therefore nothing is found from his crossexamination to disbelieve this witness as alleged by learned Advocate for the appellant. He is supported by the evidence of Jarinaben and she has stated that she was called by Police Jamadar at Tata Hospital, wherein in his presence, police officer Prapatsinh Kodarji Jadav recorded a statement of the deceased. In his presence, thumb impression of the deceased was obtained. This is corroborated by PW1 Dr. Bipinbhai Patel when he deposed that he found ink marks on right hand thumb of the deceased and defence has not dislodged the say of this independent witness. A very important fact which Jarinaben has stated in her cross-examination on asking question by the defence is that when the witness requested the deceased that what she meant by the fact that the accused gibeyed her, the deceased stated that the accused wanted to take undue liberty with her and deceased had tried to prevent this. Nothing is brought about in the crossexamination to disbelieve this witness also. It must be noted that both these witnesses are independent. Nothing is on record to even remotely suggesting that just to rope in the accused with the help of the prosecution witnesses, these two witnesses joined hands with the relatives of the deceased. Nothing is brought about in the crossexamination to disbelieve this witness also. It must be noted that both these witnesses are independent. Nothing is on record to even remotely suggesting that just to rope in the accused with the help of the prosecution witnesses, these two witnesses joined hands with the relatives of the deceased. On the contrary, in First Information Report, certain facts about the family of the deceased is recorded, which could be and could be only in the knowledge of the deceased, which is a sure guarantee of truthfulness of the recording of the FIR, and these facts are stated by Jarinaben also. None of these two witnesses has any connection either with the accused or with the relatives of the deceased. There is no reason that why both these independent witnesses, one belonged to Mithapur and other belonged to police force, would fabricate evidence like FIR - Exhibit44 against the accused. Only because Jarinaben stated that her statement was not recorded by the police, would not render her version untruthful. She deposed before the court after the considerable time of recording of her statement by the police. This may be the bona fide error on the part of the witness. At the same time, it must be noted that the defence has not confronted her with police statement or confronted that police, in fact, had recorded her statement. Evidence of both these witnesses, on reappreciation, are found trustworthy so far as Exhibit - 44 FIR is concerned. 35. The above two witnesses are further corroborated by PW2 Dr. Narbheram Hiradas Gondaliya. From his evidence, it comes out clearly that the patient was conscious and was able to speak. He denied the fact in crossexamination that in burn injuries like cases of Roshanben, the patient would gradually lose consciousness and would go in shock. The Doctor also denied the fact that on account of medicines administered by this witness, the patient had drowsiness. Not only that, in crossexamination, the witness stated that when he examined the patient, the patient was smelling of kerosene. He also denied the suggestion that since the patient had injuries on mouth, she could not speak. 36. Now, in this connection, important witness PW3 Mansukhbhai Madhabhai Makwana, is also required to be re-appreciated. Not only that, in crossexamination, the witness stated that when he examined the patient, the patient was smelling of kerosene. He also denied the suggestion that since the patient had injuries on mouth, she could not speak. 36. Now, in this connection, important witness PW3 Mansukhbhai Madhabhai Makwana, is also required to be re-appreciated. He is also a very important independent witness and he received wireless message from police and, therefore, from Dwaraka he visited Tata Hospital at Mithapur. He ascertained from the Doctor about the condition of the patient and Doctor stated that the patient was conscious. When he himself ascertained, he found that, Roshan was in position to understand the questions and give answers. Then he asked the questions. Roshanben narrated that it was the accused, who caused burn injuries and he prepared dying declaration at Exhibit18 wherein Roshanben put her right hand thumb impression. The witness was crossexamined in detail. Except denial and where the Doctor has signed in the DD, nothing material is asked or challenged in the cross-examination. In crossexamination, the witness stated that he could not say where the Doctor made endorsement about the consciousness of patient below Exhibit18 dying declaration. He stated that the endorsement might have been made at the cot of the patient or in his chamber. On the contrary, in clear question of defence, the witness stated that when he reached at Tata Hospital, Roshanben was in position to talk with her relatives. Nothing could be brought on record by the defence to dislodge the independent and reliable evidence of this witness. 37. True it is that, as per the settled law, it is for the court to decide whether the patient was in fit condition of mind to give dying declaration. Merely consciousness of the patient, may not be material. It is not necessary that in all cases, there must be a medical opinion that patient was in fit condition of mind to give dying declaration, but it is for the court to ascertain from the circumstances whether the deceased was in fit state of mind. The Hon'ble Supreme Court in the matter of Laxman v. State of Maharashtra, as reported in 2003 (1) GLR 1 SC : (2002) 6 SCC 710 , ruled this principle of law. In Exhibit44, FIR as well as in Exhibit18 Dying Declaration, Dr. The Hon'ble Supreme Court in the matter of Laxman v. State of Maharashtra, as reported in 2003 (1) GLR 1 SC : (2002) 6 SCC 710 , ruled this principle of law. In Exhibit44, FIR as well as in Exhibit18 Dying Declaration, Dr. Narbheram Hiradas Gondaliya, made an endorsement that patient was conscious and he signed that endorsement. When we scrutinised the evidence to ascertain whether the patient was in conscious and in fit state of mind to give dying declaration, the evidence of independent witness i.e. Dr. Narbheram Hiradas Gondaliya - PW2; Prapatsinh Bhimsinh Jadeja - PW15 and Jarinaben Ibrahim - PW5 are very helpful. Dr. Narbheram Hiradas Gondaliya in uncertain terms stated that the patient was conscious and was not drowsy. The patient had given the history of burn, which he noted in Certificate produced at Exhibit 15. When PW15 Prapatsinh Kodarji Jadav reached at Tata Hospital, Mithapur, he also consulted the Doctor and examined the patient himself and in the presence of Jarinaben. It is his case that Roshanben was in position to speak and conscious and that was also the opinion of the Doctor. This fact is also stated by Jarinaben. Not only this, the fourth independent witness Mansukhbhai Madhabhai Makwana, Executive Magistrate, PW3 also ascertained himself that Roshanben was in condition to speak, which suggests that, she was in fit state of mind. We do not see any reason for four independent witnesses, who are coming from different departments and units, would join hands together, to record a false FIR Exhibit 44 and a false Dying Declaration - Exhibit18, just to rope in the accused for no reason because no such reason could be established by the defence especially when they said that the patient was conscious and was able to speak, that suggests the fitness of mind of the patient to speak and this weighty evidence could not be dislodged by the prosecution. It is not understood that why all these four independent witnesses coming from separate units, would conspire together and record FIR and DD even the patient deceased was not conscious and not in fitness of mind. It is not understood that why all these four independent witnesses coming from separate units, would conspire together and record FIR and DD even the patient deceased was not conscious and not in fitness of mind. On the contrary, it is for the defence to explain what was the reason to depose all these four witnesses against the accused, with whom, none of the four witnesses had any grudge to state that accused had poured kerosene upon the deceased and had ignited the deceased. On the contrary, naturalness and the manner in which all the four witnesses have stated before the court, give credence to their evidence as to the fitness of mind of the deceased more so when the oral dying declaration, first in point of time, made by the deceased before PW7 Haji Noormohamad, is in all respects consistent with Exhibit44 FIR and Exhibit18 Dying Declaration recorded by the Executive Magistrate. These circumstances are strong evidence against the accused of his having committed cruel crime against the deceased. 38. It is not the law that in all cases of 90% burns or more, no patient would be in condition to speak. It also depends upon the facts and circumstances of the case irrespective of the percentage of burning. This is so because dying declaration depends upon the capacity of the body of the human being. In some cases, it may happen that much lower percentage of burn would not leave the patient in fitness of mind while strong human body despite 90% burns would sustain the strength and would be in fitness of mind and, therefore, in the case of Laxman (supra), the Apex Court directed that the fitness of mind has to be ascertained by the court from the evidence recorded. It is not acceptable that only because the deceased had 90% burns, she was not fit state of mind to give dying declaration or make statement. 39. It is also proved beyond doubt that the deceased was knowing Gujarati fully well. When the evidence of Jarinaben and Prapatsinh Kodarji Jadav is considered in true perspective, it becomes clear that deceased was knowing Gujarati language fully well, but she spoke some words in Vagher dialect, which was interpreted by Jarinaben. 39. It is also proved beyond doubt that the deceased was knowing Gujarati fully well. When the evidence of Jarinaben and Prapatsinh Kodarji Jadav is considered in true perspective, it becomes clear that deceased was knowing Gujarati language fully well, but she spoke some words in Vagher dialect, which was interpreted by Jarinaben. That does not lead to the inference as has been submitted by learned Advocate for the appellant that the deceased lady was knowing only language Vagher and was not knowing Gujarati and, therefore, Exhibit44 FIR and Exhibit-18 Dying Declaration were not reliable documents. In examinationinchief as well as in examination-incross, PW15 Prapatsinh Kodarji Jadav and witness Jarinaben had amply made it clear that the deceased was knowing Gujarati language very well. Necessary it is therefore to refer here to the evidence of PW 3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, wherein he also noted the same facts in dying declaration which were within the knowledge of the deceased only, before whom, undoubtedly, the deceased narrated and answered the questions in Gujarati. Had it not been so, the Executive Magistrate might have recorded that fact. It must be noted that, it is not the allegation of the defence so far as Dying Declaration - Exhibit-18 is concerned that deceased was speaking only Vagher dialect and not Gujarati. This is so because the recording of Dying Declaration in Gujarati by witness Mansukhbhai Madhavbhai Makwana, Executive Magistrate, has not at all been challenged by the defence in crossexamination of Mansukhbhai Madhabhai Makwana that deceased was not knowing Gujarati and was knowing only Vagher dialect. Not a single question, in this regard, was asked by the defence to this witness Mansukhbhai Madhabhai Makwana and, therefore, inevitable conclusion must be that, the deceased knew Gujarati fully well, but while recording FIR, she stated few words in Vagher dialect, which were interpreted by Jarinaben and she was an independent witness. Therefore, there is no scope for the defence to argue that firstly on account of 90% burns, the deceased was not in position to speak nor that the deceased knew only Vagher language and not Gujarati language and, therefore, Exhibit 44 FIR and Exhibit18 Dying Declaration are false. 40. Yet after this thumping evidence of prosecution, the prosecution is still more corroborated by the evidence PW14 Dilipsinh Bhimsinh Jadeja. The deceased was transferred from Tata Hospital, Mithapur to Irwin Hospital at Jamnagar. 40. Yet after this thumping evidence of prosecution, the prosecution is still more corroborated by the evidence PW14 Dilipsinh Bhimsinh Jadeja. The deceased was transferred from Tata Hospital, Mithapur to Irwin Hospital at Jamnagar. This witness Dilipsinh Bhimsinh Jadeja was a duty Head Constable at the hospital from 'B' Division Police Station, Jamnagar. This witness also stated that, on inquiring, the deceased told him that she was burnt by the accused after pouring kerosene and in extremely consistent with the story what she stated before PW7 Haji Noormohamad, what she stated in FIR and what she stated in Exhibit18 Dying Declaration. It is far stretching logic even to say that this witness, who was Constable on duty at Irwin Hospital at Mithapur, also joined hands with the relatives of the deceased to depose falsely against the accused in the oral dying declaration made by the deceased before this witness. The deposition of this witness could not be effectively challenged by the defence in cross-examination. It is, therefore, established that when this witness Dilipsinh asked the deceased about the incident, she stated that, she was burnt by the accused and that her complaint was recorded at Tata Hospital, Mithapur. It appears that deceased was shifted to Irwin Hospital, Jamnagar at about 18.00 hours on the same day, which is established by the Yadi at Exhibit - 38. This denotes that the deceased was complete in fitness of mind when her dying declaration was recorded and FIR was recorded at Mithapur Tata Hospital but she was fully conscious in fitness of mind till 18.00 hours when she reached at Irwin Hospital at Jamnagar. She died on the next day at about 17.00 hours. This witness is co The evidence of PW14 Dilipsinh Bhimsinh Jadeja establishes about the consistent dying declarations, which could not be dislodged by the prosecution. This witness is corroborated by documentary evidence of yadis which was addressed to "B" Division City Police Station, Jamnagar, to confirm what was stated by deceased to him. These yadis could not be fabricated afterwards just to implicate the accused for no motive. All these circumstances lead us to the only conclusion that with 90% burn injuries, the deceased was all through out in fit state of mind. 41. Thus, from the evidence of PW7 Haji Noormohamad, Exhibit23; from the evidence of PW2 Dr. These yadis could not be fabricated afterwards just to implicate the accused for no motive. All these circumstances lead us to the only conclusion that with 90% burn injuries, the deceased was all through out in fit state of mind. 41. Thus, from the evidence of PW7 Haji Noormohamad, Exhibit23; from the evidence of PW2 Dr. Narbheram Hiradas Gondaliya, Exhibit14; from the evidence of PW3 Mansukhbhai Madhabhai Makwana, Executive Magistrate, Exhibit17; from the evidence of PW5 Jarinaben, Exhibit20 and from the documentary evidence i.e. FIR - Exhibit 44 and Dying Declaration - Exhibit18 and from the evidence of PW14 Dilipsinh Bhimsinh Jadeja, Exhibit14, it is found that case of the prosecution resting on dying declaration is extremely truthful and proved beyond doubt. There is no material on record to show that dying declaration was result of product of imagination, tutoring or prompting. On the contrary, dying declaration appears to have been made voluntarily. All the four occasions when deceased was asked, she declared the same story. The version of prosecution is trustworthy and credible. As stated above, state of mind of the deceased was proved not only by the evidence of the Doctor by other three independent witnesses, who had no reason to manipulate the dying declarations. In the aforesaid background, it cannot be said that there were any infirmity in dying declarations. When the person recording dying declaration is satisfied that the declarant was in fit mental condition to make a dying declaration, then such dying declaration will not be invalid solely on the ground that the patient had 90% burn injury and in all probability the deceased must not have been able to speak. We do not therefore accept the arguments of learned Advocate for the appellant. 42. So far as defence witness Dr. Jayantilal Gokalbhai Pagda is concerned, there is no reason why the prosecution should explain that this witness is not examined by the prosecution. It is established law that prosecution may adduce as many witnesses as prosecution likes. The fact is whether the prosecution was able to prove the case from the evidence adduced by the prosecution. Adverse inference would be drawn only when the witness was utterly material to come to the conclusion. It is established law that prosecution may adduce as many witnesses as prosecution likes. The fact is whether the prosecution was able to prove the case from the evidence adduced by the prosecution. Adverse inference would be drawn only when the witness was utterly material to come to the conclusion. True that defence witness Jayantilal Gokalbhai Pagda, examined the deceased, in first point of time, at Primary Heath Center at village Bet and gave certificate in this respect, which is produced at Exhibit56, wherein he recorded history that, the patient had burns by cooking at her house before some time and that patient was semiconscious. Now when we reappreciate the evidence of this witness, he made clear admission that history was given by the husband of the deceased Noor Mohmad Adambhai and not by the deceased. The say of the witness that the patient was speaking Vagher dialect and was in semiconscious condition and was not able to speak, would not affect the prosecution case at all. This is so because when patient was semiconscious when Dr. Jayantilal Gokalbhai Pagda examined the patient, the question of ascertaining her language, the patient spoke, would not have arisen at all. The witness further stated in his deposition in clear terms that the persons who gets 80 to 90% burns, may or may not speak. Along with this, in examinationincross, he also gave his opinion that in such type of cases, if correct treatment is administered to the patient, such patient may gain full consciousness. In cross-examination he explained that when he examined the decease, she was semiconscious which clearly meant neither conscious nor unconscious. With this statement of defence witness, as stated above, when we re-appreciated the evidence of independent witnesses, we found that, what is stated by the defence witness, is not contrary to what is stated by the witnesses, who latter point of time examined the deceased. It is not the opinion of the Defence Witness No.1 that the patient was so semiconscious that it was not possible at all for her to speak in near future. On the contrary, the defence witness expressly stated that the patient may gain full consciousness on properly treating her and, therefore, the defence witness deposed in consonance with the prosecution case and not in contradiction. On the contrary, the defence witness expressly stated that the patient may gain full consciousness on properly treating her and, therefore, the defence witness deposed in consonance with the prosecution case and not in contradiction. The deceased was serious and, therefore, she was taken to Tata Hospital at Mithapur where she was treated and she was fully conscious. Nothing is gained by the defence from the evidence of Defence Witness No.1 Dr. Jayantilal Gokalbhai Pagda, but on the contrary, the evidence of Dr. Jayantilal Gokalbhai Pagda helps more to the prosecution case which is revealed and appreciated by us, as aforesaid. 43. Learned Advocate for the Appellant also stated that time gap, which is narrated by Jarinaben also, is one of the factors to eliminate the credibility of the dying declaration when she in cross-examination stated that First Information Report Exhibit - 44 was fully recorded at about 5.45 to 6.00 p.m. Learned Advocate for the appellant stated that, in fact, first in point of time, FIR was recorded and when the same was recorded in the hospital, has not been mentioned in the FIR, but undoubtedly, dying declaration was recorded after Exhibit 44 FIR was recorded and that was recorded at 17.30 hours to 17.40 hours. When therefore Jarinaben stated that the complaint i.e. FIR Exhibit 44 was fully recorded at 6.00 p.m., the doubt is created that the subsequent document i.e. Dying Declaration Exhibit18 was recorded at 17.40 hours, then how the entire document Exhibit 44 came to be recorded and completed at 6.00 p.m. 44. The time stated by Jarinaben is simple and natural discrepancy in the prosecution case. When the witness comes to the Court after some times, no mathematical exactness of the time could be expected from the witness. Some slips here and there is quite natural in the deposition of witness and that gives credence to the witness as the court disfavours the parrot like version. In saying that the complaint was recorded fully at 18.00 hours on that day, Jarinaben made a simple error in respect of time, which is quite natural and would not lead to the conclusion that FIR and Dying Declaration were manipulated documents. 45. Learned Advocate Mr. B.P. Munshi, for the appellant relied upon some decisions and made some submissions. In saying that the complaint was recorded fully at 18.00 hours on that day, Jarinaben made a simple error in respect of time, which is quite natural and would not lead to the conclusion that FIR and Dying Declaration were manipulated documents. 45. Learned Advocate Mr. B.P. Munshi, for the appellant relied upon some decisions and made some submissions. In the matter of Nallapati Sivaiah v. Subdivisional Officer, Guntur, A.P., as reported in AIR 2008 SC 19 , the Apex Court did not rely upon the dying declaration on facts. After considering the whole law on dying declaration, the Apex Court observed in para20 that the court has to consider each case in the circumstances of the case. What value should be given to a dying declaration is left to court, which on assessment of the circumstances and the evidence and materials on record, will come to a conclusion about the truth or otherwise of the version, be it written, oral, verbal or by sign or by gestures. It is also a settled principle of law that dying declaration is a substantive evidence and an order of conviction can be recorded on the basis of dying declaration that the court is fully satisfied that the dying declaration made by the deceased was voluntary and reliable and the author recorded the dying declaration as stated by the deceased. The Apex Court laid down the principle that for relying upon the dying declaration the court must be conscious that the dying declaration was voluntary and further it was recorded correctly and above all the maker was in a fit condition - mentally and physically to make such statement. Thereafter, the Apex Court noted peculiar features of the case which was at the hands of the Apex Court and noting the facts that Judicial First Class Magistrate made an endorsement to the effect that he obtained the great toe impression of left foot of the victim as his both hands and his right foot were bleeding with multiple cut injuries and blood was oozing from them. The victim did not state anything about the dying declaration recorded by PW9 in Exh.10. In Exh.10 recorded by the police officer, he implicated the appellant and four others and stated that appellant was cut his face and head with hunting sickle and the other four cut his legs and hands with hunting sickles. The victim did not state anything about the dying declaration recorded by PW9 in Exh.10. In Exh.10 recorded by the police officer, he implicated the appellant and four others and stated that appellant was cut his face and head with hunting sickle and the other four cut his legs and hands with hunting sickles. In the second Dying Declaration the deceased implicated the appellant and other three persons. He made only allegation against the appellant and three other persons and not four other persons as stated in the first dying declaration. The Apex Court therefore found it strange that at 6.35 p.m. the deceased was able to affix his right thumb impression but could not do so at 7.10 p.m. when it is clear that blood was oozing on account of multiple cut injuries from both hands and right foot of the deceased. There were discrepancies found in the first dying declaration and the second by the Apex Court. In these circumstances, the Apex Court observed that the victim had received 63 injuries on his body including serious injuries on the parietal and occipital regions and the victim on account of which could have gone into comma. The evidence of Professor of Forensic Medicine was not looked into by the lower court which was important and in these cumulative factors and surrounding circumstances in that case, the Apex Court did not rely upon the dying declarations that were recorded in Exhibit10 and Exhibit8. 46. While in the present case, as submitted above, we have four dying declarations, out of them, three are before altogether independent witnesses. All the four dying declarations are extremely consistent and accused is named in all the four dying declarations. The fitness of the mind of the deceased is established not only by the medical opinion, but by the oral say of truthful witnesses and, therefore, the decision in the case of Nallapati Sivaiah (supra) is not helpful to the defence. 47. In the matter of Chacko v. State of Kerala, as reported at AIR (2003) SC 265, there were 80% burn injuries and the declaration made after 9.00 hours and there was no medical opinion as to the evidence of mind though Doctor was available. 47. In the matter of Chacko v. State of Kerala, as reported at AIR (2003) SC 265, there were 80% burn injuries and the declaration made after 9.00 hours and there was no medical opinion as to the evidence of mind though Doctor was available. The Apex Court found the contents of declaration so arranged so as to accommodate the space above the thumb impression and, therefore, the dying declaration was not recorded in normal way and on such facts, the dying declaration was not believed by the Apex Court. 48. Like wise, in the matter of Sabbita Satyavathi v. Bandala Srinivasarao, as reported in (2004) 10 SCC 620 , wherein the manner of occurrence as alleged by the prosecution was not fitting in with findings of Medical Officer. Medical Officer recorded the declaration after two hours of the occurrence. Vital organs such as heart and lungs had suffered incised injuries. The medical opinion was that with such injuries, the injured must have become unconscious immediately and was likely to die at any time and in these circumstances, the dying declaration of the deceased was not believed by the Apex Court. 49. Though it was argued by learned Advocate for the appellant that in postmortem note it is found that lungs, heart, etc were congested by soot and, therefore, those were the vital organs and the deceased could not have survived or would not have been in fit state of mind to declare the statement. 50. We simply disagree with the submission because in the matter of Sabbita Satyavathi (supra) the case was about serious injuries while in the present case, case of burn injuries. Direct injuries on vital organs and congestion on account of soot by burn injuries make lot of differences. Even with 90% burns, in the present case, the evidence is impeccable to say that the deceased was in fit state of mind and died on the next day at 17.00 hours and, therefore, the above decisions would not be helpful to the defence. 51. Like wise in the matter of Mannual Sahu v. State of M.P., as reported in (2005) 10 SCC 259 , wherein there were three dying declarations. 51. Like wise in the matter of Mannual Sahu v. State of M.P., as reported in (2005) 10 SCC 259 , wherein there were three dying declarations. First dying declaration recorded on the date of occurrence, a case of accidental fire was disclosed; second declaration recorded on the next day of date of occurrence in which also a case of accidental fire disclosed and third declaration recorded after more than 24 hours was an occurrence which runs into more than two pages where the entire history from date of marriage till date of occurrence given in great detail and it discloses case of victim being set on fire after being doused with kerosene. In those circumstances, the Apex Court held that it was not possible to believe that such dying declaration where there is so much narration of facts with meticulous details of everything by a dying person and third dying declaration was not consistent with the previous two declarations and, therefore, on facts, the Supreme Court did not believe the dying dying declarations. 52. On principle it could not be said that the law is diluted on principle that the presumption of innocence is a human right and it is for the prosecution to prove all the charges against the accused but when the evidence is to be appreciated as cited by the prosecution, it must be borne in mind that evidence must be appreciated with reference to set up and circumstances of the occurrence and the status of witnesses. Truthfulness is to be searched with objectives, standards and keeping in mind the realities of world. Human being is bound to error and, therefore embellishments and contradictions unless it goes to the root of the prosecution case are to be ignored. Though learned Advocate for the appellant sited para 45 of the decision of the Apex Court in the matter of Kirshna Janardhan Bhat v. Datatraya G. Hegde, as reported (2008) 4 SCC 54 on principle that it is for the prosecution to prove the case . We do not disagree with the principle. In the present case, the prosecution has proved the charge against the accused beyond reasonable doubt leaving no scope at all to believe for a moment that the accused was innocent. We do not disagree with the principle. In the present case, the prosecution has proved the charge against the accused beyond reasonable doubt leaving no scope at all to believe for a moment that the accused was innocent. Undoubtedly, every criminal trials start with the presumption of innocence and when independent evidence is led and appreciated and if the accused is found guilty beyond doubt, such presumption thereafter would not sustain. 53. Learned Advocate for the appellant also submitted that the Medical Officer must remain constantly present with the patient when dying declaration is being recorded. Appreciating this submission, we found that, no where such principle of law is settled nor such provision of law prevails to this effect. What is required is the satisfaction of the court as to mental fitness of the declarant even in absence of medical opinion. 54. In this view of the matter, when we do not find any error in the judgment impugned in this Appeal we are not inclined to interfere with the findings recorded by the Trial Court. 55. For the reasons recorded above, the Appeal stands dismissed. Appeal dismissed.