JUDGMENT K.S. Garewal, J.:- AniI Kumar appellant was a 19 years old student of Baund Kalan, District Bhiwani. He lived with his parents Kushalpal Singh and Mijesh. He had an elder brother Dinesh who was married to Lalita daughter of Ram Chander of Chappar Rangran. They had an infant daughter about one year old. Lalita’s sister Babita was married to Pawan Kumar son of Kushalpal Singh’s brother. Babita had an infant son who was also one year old. Both Lalita and Babita had been married to the two cousins Dinesh and Pawan on the same day. Both couples were happy until Dinesh’s brother Anil Kumar was overcome by lust and raped his sister-in-law Lalita on March 29, 2006. The next morning i.e. on March 30, 2006 Anil Kumar again sexually assaulted Lalita but when she complained that she would inform her husband Dinesh. Anil Kumar poured kerosene oil on her and immolated her. 2. Anil Kumar and his mother Mijesh were tried for Lalita’s murder by the learned Additional Sessions Judge, Bhiwani. Anil Kumar was found guilty under Section 302/376 IPC. He was sentenced rigorous imprisonment for life under Section 302 IPC vide judgment dated January 30 & 31, 2007 and to concurrent sentence of 10 years under Section 376 IPC. He was also awarded sentences of fine. Mijesh was acquitted. Anil Kumar has filed the present appeal. 3. The main evidence against Anil Kumar is of Lalita’s dying declaration recorded by Shri Bimal Kumar, Judicial Magistrate Ist Class, who was examined as PW -2 before the Trial Court. 4. Lalita had been medico-legally examined by Rakesh Kumar (PW-3) at PGIMS, Rohtak on March 30, 2006 at 9.35 a.m. Medical Officer found 100% superficial to deep burns all over the body. He sent information to the police whereupon ASI Yad Ram had reached the hospital and taken up investigation. 5. The learned Magistrate testified that he was posted at Rohtak on March 30, 2006, ASI Yad Ram had requested him to record Lalita’s statement whereupon he had gone to PGIMS, Rohtak and after obtaining the opinion of Dr. Pawan Goel (PW-4) as regards Lalita’s fitness to speak, Lalita’s statement was recorded which is Ex.PB/1 and the operative part is reproduced as under:­ “My marriage was performed with Dinesh about two years ago. I have one daughter aged about 1¼ years. Pawan Goel (PW-4) as regards Lalita’s fitness to speak, Lalita’s statement was recorded which is Ex.PB/1 and the operative part is reproduced as under:­ “My marriage was performed with Dinesh about two years ago. I have one daughter aged about 1¼ years. My parents-in-law, husband brother devar and sister-in-law (nanad) are residing in my home. Today at about 9 a.m. my brother-in-law Mijesh were present in the house. I was grinding wheat. My brother-in-law (devar) Anil outraged my modesty to the maximum extent and then set ablazed.” (15 minutes pause) “My brother-in-law (devar) committed illicit act with me when I told him that she would narrate the episode to her husband then my brother in law set me on fire and my mother-in-law gave the match box and sister-in-law (nanad) was also present there. My husband did not harass me. He is a good man.” 6. At the foot of the statement of Lalita’s thumb impression was taken. 7. On the basis of the above statement FIR was registered at Police Station Baund Kalan at 5.30 p.m. under Section 307/376 IPC. Anil Kumar and his mother Mijesh were arrested and sent up to face trial. 8. On March 31, 2006 Lalita was medico-legally examined by Dr. Hitu Nagpal (PW-15). The Medical Officer examined her per vagina and took vaginal swabs for semen examination but pubic hair could not be taken as it was burnt. Examination of the partially burnt clothes, hair, a piece of glass bangles, one used and two live match sticks alongwith six metallic curtain hanger revealed traces of hydrocarbons of diesel fraction of petroleum. Match box containing four live match sticks and a canister containing 80 mls. of liquid was sent for examination. At FSL, Madhuban no hydrocarbons were detected on the match box while the can was found to contain diesel(HSD). Human semen was found on vaginal swabs and blue cotton underwear (taken by Dr. Hitu Nagpal) and blue underwear recovered by Dr. Vikram Singh. 9. Anil Kumar was medico-legally examined by Dr. Vikram Singh (PW-1). The Medical Officer found that he was well built and well nursed male with well developed sexual organs. There was nothing to suggest that Anil Kumar was incapable to perform sexual intercourse. His underwear was also handed over to the police. 10. Lalita died on April 3, 2006 at 2.55 p.m. and her post mortem was conducted by Dr. The Medical Officer found that he was well built and well nursed male with well developed sexual organs. There was nothing to suggest that Anil Kumar was incapable to perform sexual intercourse. His underwear was also handed over to the police. 10. Lalita died on April 3, 2006 at 2.55 p.m. and her post mortem was conducted by Dr. Archana Gupta (PW-5) on April 4, 2006 at 10.30 a.m. The Medical Officer found as follows: ”100% superficial to deep burns all over the body covered with dirty yellow discharge wearing white metallic ring in middle finger of right hand and yellow metallic nose pin in the left nostril both of which handed over to the police. Rigor mortis was present. On examination of skull, hair were singed and rest was normal and healthy, membrane of the brain’ were pale and healthy. There were superficial to deep burns were present on the thorax, pleura was pale and healthy, larynx and trachea right and left lungs were congested. Right side of the heart contained clotted blood. Left side was empty. On examination of abdomen, superficial to deep bums were present on the abdomen wall and peritoneum was pale mouth was burnt and congested, stomach was congested and contains fluid small intestine contained fluid and gases, large intestine contains foul smelling gases, liver and spleen were pale and healthy kidneys were pale and shrunken, bladder was empty. Pale and healthy. Organs of generation, non gravid healthy uterus. 11. Main witnesses examined by prosecution were Dr. Vikram Singh (PW-1), Shri Bimal Kumar Judicial Magistrate 1st Class (PW-2), Dr. Rakesh Kumar(PW-3), Dr. Pawan Goyal (PW-4), Dr. Archana Gupta (PW-5), Dalip Singh (PW-9), Ram Chander (PW-10), Harkesh (PW-11), ASI Yad Ram (PW-12), Dr. Hitu Nagpal (PW-15) and closed the case. 12. Anil Kumar was examined without oath under Section 313 Cr.P.C. He gave the following version:­ “I have not committed rape with Smt. Lalita and she was not done to death by dousing kerosene oil. I was student at the time of occurrence in Government college, Baund Kalan. At the time of the occurrence, I was present in my Nohra in front of my house alongwith my brother Dinesh when the deceased caught fire while preparing tea then hearing her shrieks the neighbours opened the door by giving a push and bolt of the door was broken due to push given by the neighbours. At the time of the occurrence, I was present in my Nohra in front of my house alongwith my brother Dinesh when the deceased caught fire while preparing tea then hearing her shrieks the neighbours opened the door by giving a push and bolt of the door was broken due to push given by the neighbours. The neighbours extinguished the fire and I and my brother Dinesh also reached the spot. We took the deceased immediately to PGI MS Rohtak and parents of the deceased were very much informed.” 13. The learned counsel for the appellant has forcefully argued that there was no evidence that Anil Kumar had raped or outraged the modesty of the deceased. The dying declaration recorded by the Magistrate was unreliable because during its recording, deceased had become unconscious for considerable period of time. She had regained conscious and continued with her statement. This shows that she was not at all in a fit condition to give a coherent statement. Furthermore, when she was brought to the hospital and examined by Dr. Rakesh Kumar (PW-3) she told the Medical Officer that she had received burns at home at 8.00 a.m. while making tea. This version was elicited from the Medical Officer in cross-examination on the basis of what was mentioned in medico legal report Ex.PC. 14. Learned counsel also referred to the testimony of Lalita’s father Ram Chander who stated that he had reached the hospital. He had enquired from his daughter about what happened and she disclosed that she had received burns while making tea. However, he and other members of the family asked her to make statement before the Magistrate as told by them. From the above circumstances the learned counsel tried to build up a case that the appellant was innocent, he had neither molested nor raped the deceased. The semen found in the vagina of the patient did not match with him as no DNA matching was done. The semen could very well have been of Lalita’s husband Dinesh. 15. Counsel also attacked the dying declaration on the ground that it was really into two parts recorded with a gap of about 15 minutes during which Lalita had fallen unconscious. Therefore, it was unreliable particularly when it had been recorded at the instance of her father Ram Chander. 16. The entire case against the appellant is based on the dying declaration. Therefore, it was unreliable particularly when it had been recorded at the instance of her father Ram Chander. 16. The entire case against the appellant is based on the dying declaration. Therefore, we have examined the original statement recorded by the learned Magistrate to see if it is worthy of credence. 17. The statement is indeed in two parts. The first part was recorded after which the patient had become unconscious and stopped responding to questions. The Magistrate mentioned this fact in the statement itself. After 15 minutes Lalita regained consciousness and the Magistrate proceeded to question. 18. In the first part Lalita described that she was married to Dinesh 2 years ago and had a daughter aged about 1¼years old. She had lived in her matrimonial home with her parents-in-law, husband, devar (Anil Kumar) and nanad (Babita). In the morning at 9.00 a.m. when her devar, nanad and mother-in-law were at home she was grinding wheat her devar misbehaved with her (bat tamizi ki) and crossed all bounds. She was set on fire. 19. After regaining consciousness Lalita went on to state that her devar committed Galat Kaam (illicit act). When she said that she would inform her husband, her devar set her on fire. Her mother-in-law gave him the match box, her nanad was also there. She had also stated that her husband did not trouble her and was a good man. 20. We are fully convinced that Lalita’s dying declaration was voluntary and made by her without any hesitation or pressure from anyone. Lalita’s father Ram Chander had a good reason to resile from his earlier statement. It may be recalled that Ram Chander’s second daughter Babita was married in the same family to the appellant’s cousin, both sisters were given in marriage together on the same day. Babita’s marriage had been a happy one, therefore, Ram Chander must have been anxious to support the version of the accused, to help him to an secure acquittal. If he had not done so the family of the accused would have vented anger against Ram Chander’s second daughter Babita. This was the reason that Ram Chander had taken the easy way out. 21. It was argued by the learned counsel that Lalita had first of all given a statement before the Medical Officer that she had sustained burns while making tea. This was the reason that Ram Chander had taken the easy way out. 21. It was argued by the learned counsel that Lalita had first of all given a statement before the Medical Officer that she had sustained burns while making tea. She made the dying declaration to the Magistrate after her father and family had reached the hospital. It was at their instance that Lalita introduced the version of rape/molestation by the appellant leading to her immolation. 22. We are not at all impressed with the above arguments because the appellant’s conviction can be sustained solely on the basis of the dying declaration. The statement was recorded by a responsible Judicial Officer in the presence of Dr. Pawan Goyal (PW-4) who had also given his certificate to the following effect:­ “During recording of statement patient felt unconscious for some time. After sometime she regained consciousness and made the statement. Patient made the statement. Patient was fit during statement except for that spell of unconsciousness.” At the top of the statement Dr. Pawan Goyal certified that the patient is fit for statement. The dying declaration also contains a certificate of the learned Magistrate that he was satisfied that the statement had been made willfully and voluntary, had been recorded by the Magistrate in his own handwriting and had been read over and explained to Lalita. She had thumb marked it to be correct. Therefore, we have no hesitation in accepting dying declaration and holding that the appellant had committed forcibly sexual intercourse with the deceased and subsequently burnt her to death. 23. Dr. Hitu Nagpal (PW -15) testified as regards a third version which was given to her by Lalita when she examined her on March 31, 2006. The Medical Officer stated that Lalita was admitted in the hospital with history of 100% burns on March 30, 2006 in the morning and rape on March 29, 2006 afternoon by her brother-in-law. This has been recorded in the patient’s short stay file Ex.PD but in the case summary and discharge notes it is recorded that patient admitted as a case of burns with alleged history of accidental burns while cooking. 24. It is understandable that Medical Officers would like to know how the patients had suffered a particular injury because this would aid in treatment. 24. It is understandable that Medical Officers would like to know how the patients had suffered a particular injury because this would aid in treatment. Such statements made by patients to Medical Officers have very little evidentiary value at trial where a Magistrate had recorded a detailed statement. They may have some value if neither a Magistrate nor the Police Officer has been able to reach the patient to come to know what had really happened. But if the patient’s statement had been recorded by a Magistrate after getting a certificate regarding the patient’s fitness, in the presence of a Medical Officer and reading it out the statement to the patient who confirms if it was correctly recorded, there was little scope for discarding such a dying declaration on the basis of what was recorded by the Doctor. We are of the considered view that when a Magistrate records a dying declaration, he tacitly certifies that the person whose statement he is recording is fit, able and conscious to give a coherent statement. It is only he himself satisfies this is so, he proceeds to record the statement. Our Magistrates record statements of witnesses every day during trials conducted by them. The Magistrate preside over Trial Courts and the main evidence in a Trial Court consists of oral testimony which is based on statements of witnesses given in court. No Magistrate would ever risk recording the statement of a person where that person is in a state of shock, under influence of drugs, incapable of speaking or has lapsed into state of unconsciousness. Where a Magistrate certifies to the patient’s health, no medical certificate is necessary. In the present case the Magistrate has taken a precaution of obtaining the certificate of the Medical Officer, we have no hesitation in accepting the evidence of the Magistrate regarding above dying declaration of the deceased. We find no merit in this appeal. The appeal is dismissed. There is also no merit in Criminal Appeal No. 600 DB of 2007. The same is hereby dismissed. --------------